David R. Henderson  

Jerry Taylor's Sleight of Hand on Freedom of Association

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Jerry Taylor of the Niskanen Center and John Stossel of Fox Business Network have been arguing about, among other things, freedom of association. Taylor is against it; Stossel is for it.

Specifically, Jerry Taylor wants a law that makes it illegal for people to discriminate on the basis of race when hiring, allowing people in their restaurants, etc. That's what the Civil Rights Act does. Although Taylor uses examples of white people refusing to hire black people, presumably he would also make it illegal for black people to refuse to hire white people. I assume, but don't know, that Jerry Taylor would also make it illegal for white people to discriminate against white people. I have in mind a recent case (I can't find the link) where a (presumably largely white-owned) network or web site put out a notice saying that it wanted only black people to apply.

John Stossel, by contrast, wants people to be free to hire whom they want and to exclude people from their businesses on whatever grounds they want. So he would allow white employers to refuse to hire black people and also would allow black people to refuse hire white people. He would also allow white people to hire only black people.

One can make various arguments for or against either position.

But Taylor makes the argument that I diagrammed above.

Call A the situation in the southern United States when segregation was enforced by law. That was an extreme violation of freedom of association.

Call B the situation that Jerry Taylor wants, where discrimination on racial grounds is illegal.

Call C the situation that John Stossel wants, where there is freedom of association. People would be free to discriminate on any grounds they wish but would not be required to discriminate.

John Stossel argues that C is freer than A. He also argues that C is freer than B. I'm virtually positive that he would argue that B is freer than A.

Jerry Taylor would certainly agree that C is freer than A but he thinks that B is freer than C.

So the argument comes down to: Is B freer than C (Jerry Taylor's view) or is C freer than B (John Stossel's view.)

So how does Jerry Taylor cinch the argument? By claiming that B is freer than A. He writes:

Defending unchecked "freedom of association" in a society whose institutions and culture have been built around the goal of denying freedom to most people is, in effect, a slightly less obvious way of continuing to deny freedom to most people. If you doubt that, just ask yourself whether the south is, on the whole, really less free today than it was in the 1950s because whites can no longer treat African-Americans as subhuman, second-class citizens.

I'm virtually positive, as I said above, that John thinks the south is on the whole freer today than in the 1950s. That is, John agrees that B is freer than A.

That, of course, is not what's at issue.


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COMMENTS (31 to date)
Daniel Kuehn writes:

You read him very differently than I did, I thought it was an excellent post. The 50s were unfree, he maintains, because whites could exclude blacks in these ways not just because they had to and now they "can no longer". Certainly some policy forced segregation but there was plenty of unforced but allowed segregation and the point Taylor made very well is that the two foster each other. He views the 50s as very different from your A, with substantial amounts of C.

Hana writes:

I believe you have your written equations in the sentence, 'So the argument comes down to: Is C freer than B (Jerry Taylor's view) or is B freer than C (John Stossel's view.)'reversed.

RohanV writes:

I think Jerry Taylor is suggesting that A = C.

You are making a distinction between them, but I think Taylor does not. I.e. in his view, the law merely enforced the majority position. Without the law, the majority would have still acted in the same manner. Thus there is no meaningful distinction between positions A and C.

That may be wrong, but you are taking as given that is wrong, and not showing any evidence.

Roger McKinney writes:

The civil rights movement destroyed black businesses. Before, blacks had their own professional athletic leagues, movie studios, retail and manufacturing. In my home town, Tulsa, during the 1920's, black businesses were so prosperous that it was called the Black Wall Street of America.

After civil rights, blacks abandoned black-owned businesses for white businesses, but no whites went to black businesses. Black-owned businesses went bankrupt and whole industries died.

Blacks paid a huge economic cost for civil rights and that explains a lot of the poverty among them today.

Levi Russell writes:

Hana is right, you have the two swapped.

Thomas Sowell's work on this issue is authoritative. He argues that the CRA didn't materially improve the well-being of the average black worker. The fact that Taylor doesn't address Sowell in his post is proof of the weakness of his position.

I'm really disappointed in the level of intellectual output from the Niskanen Center. It's sad that Niskanen's name is being associated with what is essentially a smaller, newer version of the Urban Institute. Taylor's comment about public goods and market failures were dealt with by Demsetz decades ago.

David R. Henderson writes:

Thanks, Hana. I made the change.

Zeke writes:

Maybe I am failing the turing test, but it seems to me the argument by Taylor is that there were structural differences which caused A, therefore C results in A de facto.

This always struck me as specious. You would only need anti-association laws (and enforce such laws)if people wanted to break such laws. The very existence of the anti-black laws in the 1950s/60s suggest that what some could not achieve via market interaction they hoped to achieve via voting.

Mark writes:

I think Taylor views discrimination in the south in the 50s as essentially an entirely voluntary, cultural thing; in other words, he thinks that in the 'old days', C was more or less the status quo, with a little bit of A. Taylor also most likely believes that racist laws reflected racist culture. Taylor believes that culture is still racist, and therefore, absent anti-discrimination laws, racism will become rampant again.

I think this is actually pretty absurd. For one, racism is not near as common today as it was back then; indeed, I doubt even a Salon reader would try to argue that a remotely significant fraction of businesses today would discriminate racially if they could.

In general, Taylor's implied assumption that law influences culture would mean that people would become gradually more racist if they were permitted to discriminate against black people in business. That seems pretty bizarre though; a racist won't be converted to non-racism by being prohibited from doing racist things. And the absence of laws prohibiting height discrimination haven't led to people to ban short people from their restaurants 'just 'cause they can.'

Personally, I think that, if discriminating based on race were legal, actual discrimination would not likely become marginally more common than height or hair color discrimination. I don't think it's very convincing to argue voluntary discrimination should remain indefinitely illegal because it would be rampant if it were legal because the last time it was legal it was rampant.

Mark Bahner writes:
Certainly some policy forced segregation but there was plenty of unforced but allowed segregation and the point Taylor made very well is that the two foster each other.

How does "allowed segregation" "foster" public segregation?

j r writes:

What exactly is the sleight of hand?

Here's the history: the segregated Jim Crow south (T0) became a less segregated south (T1,2..), because of (a) repealing segregation laws, (b) adopting civil rights legislation that restricts freedom of association, and (c) changing cultural norms.

Are people really going to argue that because (b) involves a restriction in individual liberty then the move from T0 to T1,2.. is actually a net reduction in individual liberty. You really have to be a special kind of myopic to make that claim.

It's one thing to argue that (b) is no longer necessary and should be phased out or that (a) and (c) did the real work and (b) was never needed, but at that point we are in the realm of empirical claims that require some proof.

liberty writes:

I don't think it is slight of hand, but rather that culture is (explicitly or implicitly - and it is mentioned in your quote) assumed to matter, whereas your analysis leaves it out.

You quote Taylor:
"Defending unchecked "freedom of association" in a society whose institutions and culture have been built around the goal of denying freedom to most people is, in effect, a slightly less obvious way of continuing to deny freedom to most people. If you doubt that, just ask yourself whether the south is, on the whole, really less free today than it was in the 1950s because whites can no longer treat African-Americans as subhuman, second-class citizens."

My interpretation: in the 1950s culture, with or without legal sanction or legal imposition, would have involved much attempted discrimination. If merely allowed it would have been bad, when made the law it was perhaps worse. If you make it legal again, even without making it mandatory, it will likely return. Are we freer now, with it banned, then we were then? If yes, then let's not make it legal to discriminate again, because even without making it mandatory it will likely look similar.


Daniel Kuehn writes:

Mark Bahner -
re: "How does "allowed segregation" "foster" public segregation?"

When a culture of segregation and discrimination is thriving it generates segregationist voters and policies. Culture impacts policy and policy impacts culture. Witness culture leading policy in pot legalization, gay marriage, etc.

Pajser writes:

The problem with "freedom of association" is that it often, perhaps usually, includes restriction of freedom of non-associated persons.

For instance, if I organize mailing list for pretty people, I exercise my freedom to chose people I will talk with. So far so good. But not only that. I also restrict freedom of unpretty people. They are not allowed to publish on mailing list. If they are physically able to do so without my help (they have some good hackers to break my passwords protection) I will eventually send police on them.

What happens if such discrimination is banned? Then non-pretty people have more freedom. But I am still not forced to talk to them or read their messages.

More generally, ban of discrimination increases the freedom of would-be-discriminated people. It doesn't restrict the freedom of "those in charge" - except their freedom to restrict freedom of others.

RPLong writes:

Mises and others have argued that what ended slavery (in those places where it has ended) was economics more than politics. If this claim is true, then it would certainly be true for discrimination as well. I wonder to what extent Jerry Taylor believes that argument, and if he objects to it, what his reasons are.

Don Boudreaux writes:

To RPLong's point specifically - and to the point of this post and thread generally - I recommend Robert Higgs's 1978 book Competition and Coercion. Bob there presents evidence that market forces tend to promote open and desegregated association.

Bruce Berlin writes:

Daniel Kuehn - you write:

Witness culture leading policy in pot legalization, gay marriage, etc

Societal evolution on these issues seem to favor Stossel's position. Man, in his "natural state" (for lack of a better term)is free to smoke what he wants and share his life with whomever he chooses. It is only government restrictions that currently prohibit this "natural state" from existing. That society is now removing these restrictions and moving back in the direction of "natural state" is to be applauded (without respect to whether it results in a "desirable" outcome). Freedom to associate (or not associate) is also part of man's "natural state". Jim Crow laws restricting freedom to associate and Civil Rights laws restricting freedom to not associate seem to be flip sides of the same coin. Both should be rejected as a government imposed intrusion on a freedom that exists in man's "natural state". Like pot legalization and same sex marriage, a move back towards the "natural state" should be applauded, including removal of barriers to free association.

Daniel Kuehn writes:

Bruce Berlin -
Two thoughts. First I think it supports anyone's position that doesn't like David's state "A" and thinks that free association is a good thing. I don't think that's a view unique to Stossel.

Second it's a double edged sword that doesn't come down unambiguously one side or another. "Culture", "societal evolution" whatever you want to call it is indeed removing these prohibitions now, but it also created those prohibitions in the first place. Just as culture is responsible in part for dismantling segregation but it was also responsible for the formulation of those laws in the first place.

That's the point I was explaining in response to Mark Bahner - these aren't one way streets. Culture affects politics, politics affects culture and on and on. Taylor did a good job making that point.

Jon Murphy writes:

I guess I don't understand what he means by "unchecked freedom of association." It sounds like of like "unchecked free markets." They are checked. To Don and RPLong's point, the market checks them. A man who refuses to serve blacks hurts himself. His competitor across the street who has open doors gains.

Jon Murphy writes:

I suppose if there were a case where there was a legitimate monopoly who discriminated, then such legislation could be useful. But such a case, outside perhaps the most rural of rural areas, is unlikely

Aaron writes:

I think this is unfair to Taylor, because you've ignored the word "unchecked" and thereby excluded a middle.

B' is the state in which free association is protected as an important right, but is narrowly restricted to fight a social evil. In this view, a broad-based, systematic and reinforcing social exclusion of black people is to the right of free association what shouting "fire" in a crowded theater is to the right of free speech.

Whether or not you accept that as true, and whether or not the hiring and public accommodation titles of the 1964 Civil Rights act qualify as narrow restrictions, it is logical to argue that B' > C and C = A so B' > A. Most people accept B' > C, although strict libertarians will not. C = A is mostly an empirical question.

If this is Taylor's position, that restrictions on the right of free association are justified by the greater social good, then he doesn't have to support total forced association, just specific and narrow laws against certain free association choices.

Anonymous writes:

@Pajser

That's why I remain unconvinced that 'freedom' is an enormously useful term. If I'm not allowed to walk into your house whenever I choose, that's a restriction on my freedom. You could respond that me being able to walk into your house whenever I choose is a restriction on your freedom to live in a house that doesn't contain me. At which point the 'freedom' concept breaks down, as the fact that there are not unlimited amounts of everything necessarily means that anything anyone does imposes restrictions on the freedom of others.

'Property rights' is a much more useful concept, in my view.

Anonymous writes:

The argument against the minimum wage is that it prevents the existence of some jobs that are worth less than the minimum wage - jobs that should exist, would be mutually beneficial for both parties involved. The argument against the FDA is that someone with a terminal illness is better off taking a relatively untested drug and risking unknown side effects than taking no drug and dying.

The argument against anti-discrimination laws is... Discrimination wouldn't happen even without the laws? Even if that's the case, why not have them anyway? Surely a guarantee of zero discrimination is better than a high chance of very little discrimination?

My point is that I find this argument disingenuous. The real argument against anti-discrimination laws is the same as other analogous libertarian arguments - that if you allow the market to supply X, it will supply an efficient quantity of X. In the discrimination case, an honest argument includes the concept of efficient discrimination - business owners who really do benefit enough from not interacting with people in a given protected group that they are willing to spend money to avoid doing so.

Of course, such an argument could, probably would, involve claiming that the amount of discrimination that is efficient, therefore would be produced under freedom of contract, is very limited. But unless you are willing to defend the concept that it could ever be okay for someone to discriminate based on a taste for, or against, people in a protected group, I don't see how you expect to convince anyone that it is better for doing to so be legal.

Compare with "Murder is always wrong, but it should be legal, because I'm almost certain that very few people will choose to murder."

Teancum writes:
Even if that's the case, why not have them anyway? Surely a guarantee of zero discrimination is better than a high chance of very little discrimination?

Right, just like a guarantee of zero drug use is better than a high chance of very little drug use. Why not have laws that ban things you don't like...

Any let's please dispense with the idea that because there are laws banning discrimination that there is no discrimination. It just hides it. (Hence all the lawsuits about discrimination). I personally would prefer to have the discrimination out in the open.

What if the law was you had to post your discrimination on the door to your business. That way I can decide not to give my business to people who discriminate.

Sieben writes:

This debate really highlights what's wrong with libertarian strategy. Taylor immediately claims the moral high ground by saying that racism = bad. The proper response is to attack the assumption that "bad" things ought to be illegal. But as long as we get bogged down into little technical arguments about what *exactly* people are and aren't allowed to do, we're going to keep having this exact same conversation over drug legalization, gambling, etc.

Anonymous writes:

@Teancum

I don't think there is an extensive black market for discrimination, with enormous amounts of bloodshed involved in manufacturing discrimination, smuggling discrimination across the Mexican border, warring over turf on which to sell discrimination.

Even so, I do think that holding the view that drugs are always completely bad and never good makes it much more difficult to support drug legalization. If most of what you think is wrong with drugs is tangential to the actual drugs themselves - like how they're sold, their side effects, their addictive properties - then you can argue that the market will sort that stuff out. Drugs that are exactly what the seller claims they are will be sold on the open market, sans bloodshed, alongside services to help addicted users quit. On the other hand, if you believe that what is wrong with drugs is that narcotic use is immoral, then claims that legalization will increase access to drugs that have not been adulterated, and mean that people can openly admit to being drug users and get support if they need it, will probably have much less sway.

Any let's please dispense with the idea that because there are laws banning discrimination that there is no discrimination. It just hides it. (Hence all the lawsuits about discrimination). I personally would prefer to have the discrimination out in the open.
I expect that with both drugs and discrimination, making it illegal - thus increasing its cost - means you will get less of it. "You will never prevent it 100%, so you might as well legalize it" is a weak argument.

Although, arguments along the lines that anti-discrimination laws have more of an effect on firing than hiring, therefore mean employers are more unwilling to hire members of protected groups than they would be otherwise, are interesting. There are some other interesting arguments against anti-discrimination laws, actually. But I can't imagine they will be too convincing to anyone who doesn't accept the idea of efficient discrimination, just like I can't imagine the arguments for drug legalization will be that convincing to anyone who doesn't believe in efficient drug use.

Thomas writes:

Taylor's use of "on the whole" strikes me as a rhetorical trick that allows him to make judgments about the (illusory) well being of groups of people, without regard for the (actual) well-being of individuals in those groups. I wonder if he believes that penalizing florists and bakers for refusing to cater same-sex weddings is "on the whole" better for "society." It may be better for certain same-sex couples, but it's not better for the penalized florists and bakers. "On the whole" reasoning can be deployed to excuse any kind of infamy. Hitler and his henchmen certainly thought that their persecution and murder of Jews was "on the whole" good for Germany.

Mark writes:

Pajser: "The problem with "freedom of association" is that it often, perhaps usually, includes restriction of freedom of non-associated persons."

Only in the sense that my private property rights restrict your freedom to use my property.

Or a country club that requires a hefty fee restricts the freedom of poor people to play gold there.

You are essentially forgetting the existence of private property. If you want to maximize freedom, then we may as well abolish private property and make it legal for anyone to do anything with whatever they please. However, if we accept the premise that freedom should stop where it infringes on the rights of others, why shouldn't you be allowed to have a pretty-people only mailing list? Why shouldn't you be able to let anyone into your house you please, based on any criteria, and exclude anyone for any reason? In so far as it is your property, you may do with is as you please. People voluntarily associating with each other - and refusing to associate with certain people - restricts no one's freedom if one accepts that freedom is constrained by the principles of private property and self-ownership.

So, if your restricted mailing list were prohibited, it would indeed violate your freedom: it would violate your freedom to have a mailing list, or it would force you to associate with people you don't want to associate with. People don't have a right to force people to associate with them if they don't want to, and that includes forcing clubs to admit them or businesses to sell to them. To give them that right is deny businesses the freedom to do what they please with their own property, or clubs to choose who they want to associate with. Anti-discrimination laws are, therefore, inevitable at odds with unrestricted property rights as well as the freedom to selectively not associate with people.

I think it's important to stick to negative rights, and in terms of negative rights, freedom doesn't mean you are free to do as you please; it merely means others aren't allowed to prevent you from doing as you please (when doing it with others, in so far as they are doing so voluntarily as well). In that sense, the 'negative rights' sense of the word, anti-discrimination laws cannot make anyone more free.

James writes:

I wonder if Jerry Taylor saw a problem with Obamacare forcing people to do business with insurers even if they did not want to. Apparently he sees no problem with the government forcing people to do business with individuals even if they do not want to.

Pajser writes:

Mark, I used term "freedom" in the sense of "not being involuntarily exposed to force from other people." I assumed that Henderson used the term in similar meaning. I think it is typical "negative concept of freedom." You claim there are legitimate cases of freedom restriction - I agree - and these do not really count as freedom restriction. It is semantic difference, but it seems cleaner to me to call these "freedom restrictions" and discuss whether these are justified.

Anonymous, you claim similarity between, for instance, freedom of stalker to break in my apartment and my freedom to kick him out of my apartment. Definition above can differentiate between two; stalker doesn't need to use force against me to break in my apartment, I need force to remove him from my apartment. However, I think you are onto something, just you need some other concept instead of "freedom."

ThomasH writes:

I think the Liberal case for public accommodation laws or anti-discrimination laws is not primarily about overriding individual rights to be bigoted, although they do that. [Indeed, I'd like to see carve outs that allow individual proprietors or small family run businesses to exercise their preferences.] The laws are meant rather to "circuit break" the feedback loops by which discrimination begets more discrimination. When successful, as I think public accommodation laws have been, the general taste for bigotry decreases. (I doubt that repealing public accommodation laws would lead to a return of segregated drinking fountains.)

Extending anti-discrimination laws with regard to group Z into sphere X with enforcement mechanism Y is not guaranteed to succeed. As with everything else, a wide ranging cost benefit analysis is the best guide.

Ron H. writes:

@Anonymous

"But unless you are willing to defend the concept that it could ever be okay for someone to discriminate based on a taste for, or against, people in a protected group..."

But that is EXACTLY what freedom of association means. We may associate or NOT associate with anyone we wish, for any reason. We don't often hear arguments against freedom of association in our private homes, where we may allow or not allow anybody we wish for any reason. Why should freedom of association in our private businesses be any different? Obviously there are financial penalties for doing so, but if a person is willing to pay the cost in terms of lower income to indulge their biases, who are we to tell them they can't?


"Compare with "Murder is always wrong, but it should be legal, because I'm almost certain that very few people will choose to murder."

Bad analogy. Murder is always wrong, as it's a violation of another person's right to self ownership and self determination. However, murder isn't always illegal. Many US states have a death penalty provision which allows disinterested third parties to murder someone convicted of a serious crime, and hundreds of thousands of Americans are authorized by law to travel half way around the world to murder people they don't even know, who have never done anything to harm them.

Refusing to associate with someone for any reason doesn't violate their rights, unless you believe people have a right to force others to associate with them.

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