Freedom of Association Is No More

Tibor R. Machan

An implication of having a fundamental right to liberty is that one may choose whether to associate with other people. So one may join a club, for examples, if all involved agree but either party may also refuse to do so. As with all rights, this right of freedom of association is capable of being badly exercised. Freedom of speech may be exercised by saying stupid, insulting, or vile things. No one is authorized, however, to ban it, no matter how wrongheaded one’s choice of words. And if this right of freedom of speech is properly protected in a country’s legal system, there will not be any censorship of what people say no matter how objectionable it is to say it. Thus, when Don Imus uttered his racist slur about the Rutgers University women’s basketball players, no government could censor him. Had he been self-employed, no one could have fired him, either. But those who had employed him also had the right to freedom of association and chose to exercise it by disassociating themselves from Mr. Imus.

In a recent episode of the TV program Boston Legal a young woman hired one of the attorneys of the fictional firm on the program because she was rejected by a sorority for reasons that she deemed irrational, wrong. The leadership of the sorority, those who make decisions about who gets to be a member, regarded her undesirable because of how she comported herself—how she looked, dressed, spoke, etc. She was upset and said to one of the attorneys that what was done to her was wrong. And the attorney agreed and the decision was made to sue the sorority.

Of course this fictional case has been paralleled all over the country for decades. Yet there is no justification for applying any legal sanctions against those who, like the fictional sorority, decide not to associate with someone who wishes to associate with them. No one has the right to make another person his or her play or business partner. Having any such right would, basically, amount to legally sanctioning involuntary human associations, conscripting others against their will. Yet, just that kind of authority is implicit in the fictional law suit launched against the fictional sorority on Boston Legal. And, of course, the same is true of forcing people to become trading partners to those with whom they choose not to trade. To employ those whom they choose not to employ. Even if the decision is irrational, wrong. Because no one has the authority to make another one’s associate in anything.

There can be some difficulties when someone goes on record stating that certain qualifications will serve to get one hired and someone who meets them turns up and is nonetheless rejected. This could be legally actionable in certain circumstances, based on the fact that a promise has been made to adhere to given criteria of association. However, when no such promise has been made—when the right not to associate with people is ones’ choice and hasn’t been forfeited by one’s explicit or implicit promise to deal with others on certain terms—no sanction against exercising that right may be imposed on anyone.

Clearly, some reasons for exercising one’s right of free association may well be insidious, immoral—say if one refuses to shop in a store because the clerks there are Jewish or black or something else that has no bearing at all on the possible trade that could otherwise ensue. Racists, sexists, and other prejudicial reason, which have no bearing on what one wants out of an association, are, yes, most often wrong. Yet so could be one’s reason for refusing to date someone or to become one’s dance partner. There is no right to have another as one’s date, etc. And it clearly takes the choices of two people to commence to do the tango together. The same ought to hold for any other kind of human association unless some prior commitment has been made to adhere to specific criteria that have indeed been met.

But this is true about the right of freedom of speech. If one has committed oneself to writing a novel for a publishing house, one may not withdraw unless both parties agree and if one does, anyway, normally some sanctions would apply such as paying damages. (Usually specific performance may not be required of anyone, although this is itself a somewhat dubious tradition. It seems to rest on the idea that none may be forced to do work he or she chooses not to perform, but if rational expectations have been thwarted—expectations based on a promise or contract—some kind of remedy may well be forthcoming.)

In most societies the right to freedom of association is not fully respected and protected, mainly based on the widespread disapproval of some of the reasons why people refuse to enter into associations. But this sets a very bad precedent and can result in the gradual erosion of one’s liberties.