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.

Boxer’s Confusion about Ownership

Tibor R. Machan

California Senator Barbara Boxer sent around a letter to the editor that was published in The OC Register on April 30th, hoping to clarify “my[!] California Wild Heritage Act.” She states in this letter that “the approximately 2.3 million acres included in the bill are all publicly owned lands. Not one acre of private land is included in the proposal. These lands are now and will continue to be owned and enjoyed by the American people.”

To appreciate the absurdity of Boxer’s idea that the lands “are now and will continue to be owned and enjoyed by the American people,” I wish to recall a story told of the famous early 20th century Austrian philosopher, Ludwig Wittgenstein. In his memoir of Wittgenstein, the late Professor Norman Malcolm tells the following illustrative story about ownership:

“When in very good spirits [Wittgenstein] would jest in a delightful manner. This took the form of deliberately absurd or extravagant remarks uttered in a tone, and with the mien, of affected seriousness. On one walk he 'gave' me each tree that we passed, with the reservation that I was not to cut it down or do anything to it, or prevent the previous owners from doing anything to it: with those reservations they were henceforth mine.”

The moral of Wittgenstein’s gesture is plain: Ownership without the authority to decide to what use what is being owned will be put is meaningless, absurd. In other words, the American people do not now and will not continue to own and enjoy the lands Senator Boxer’s bill legally transfers to the federal government. No, it will be the administrators of those lands who will own it. They will have the authority to decided what happens to it.

Senator Boxer, of course, is fully aware of this, as is made clear in the caveat she adds, namely, that the “wilderness is not about locking out the public. The uses allowed include hunting, fishing, hiking, cross-country skiing, among other activities.”

Consider, however, that if one owns something one isn’t “allowed” to do one or another thing with it, one has “the right” to do so. If the American people need to be allowed to make certain kinds of use of the lands Senator Boxer’s bill makes public property, they aren’t the owners of such property. So Senator Boxer knows that the American people will not own those lands, since the American people will only be allowed, by the real owners, namely, the government, to carry out certain activities on those lands.

The idea of collective ownership, by the way, is totally anti-American. It belongs within the political-economic framework of socialism in which, as Karl Marx and Frederick Engels made clear in their book, The Communist Manifesto, the right to private property must be abolished. In its place the incoherent idea of public or collective ownership is introduced, and idea that ultimately means that some very few people in society actually own what is called “public property.” Of course, these few people will allow others to make some use of their lands because, well, they need to in order to remain in power. But what they allow, and whom, is for them to decide.

The American idea, laid out in the political theory of John Locke, is the right to private property. It is this right that makes possible, if property defended in the legal system, the freedom of diverse uses of lands and other property, uses that will serve the purposes of a highly diverse population. In fact, if this is rejected in favor of Senator Boxer’s preferred system of public—which is to say government—ownership, a very serious problem of the tragedy of the commons will afflict society. This happens when everyone believes that the so called public property may well indeed belong to him or her and then jockeys to make as much private use of it as possible. In a representative democracy this means that all sorts of special interest groups will send lobbyists and pay off politicians so that they turn out to be “allowed” the use of the lands instead of others.

The idea that some kind of fair general, universal use can be made of public lands is a myth, one identified by, among others, Thucydides. As he observed, when people own things in common, “each fancies that no harm will come to his neglect, that it is the business of somebody else to look after this or that for him; and so, by the same notion being entertained by all separately, the common cause imperceptibly decays.” (Thucydides, The History of the Peloponnesian War, bk. I, sec. 141).