The Lost Freedom of Association


iStock_000005218304SmallHere’s a question: What is the true test of one’s commitment to freedom of expression? Is it when one permits others to express ideas with which he agrees? Or is it when he permits others to express ideas he finds deeply offensive? I’m betting that most people would wisely answer that it’s the latter, and I’d agree. How about this question: What is the true test of one’s commitment to freedom of association? Is it when people permit others to freely associate in ways of which they approve? Or is it when they permit others to freely associate in ways they deem despicable? I’m sure that might be a considerable dispute about freedom of association compared with the one over freedom of expression. To be for freedom in either case requires that one be brave enough to accept the fact that some people will make offensive expressions and associate in offensive ways. Let’s explore this with an example from the past.

In 1958, Richard Loving, a white man, and Mildred Jeter, a black woman, two Virginia residents, traveled to Washington, D.C., to marry. Upon their return to Virginia, they were charged with and found guilty of violation of Virginia’s anti-miscegenation laws. In 1967, the U.S. Supreme Court, in Loving v. Virginia, held that laws banning interracial marriages violated the equal protection and due process clauses of the 14th Amendment. The couple’s conviction was reversed. Thus, Virginia’s anti-miscegenation laws not only violated the U.S. Constitution but also violated the basic human right of freedom of association.

Now let’s ask ourselves: Would Virginia’s laws have been more acceptable if, instead of banning interracial marriages, they had mandated interracial marriages? Any decent person would find such a law just as offensive — and for the same reason: It would violate freedom of association. Forced association is not freedom of association.

Before you say, “Williams, where you’re going with this discussion isn’t very good,” there’s another case from our past.

Henry Louis Mencken, writing in The Baltimore Evening Sun (11/9/48), brought to light that the city’s parks board had a regulation forbidding white and black citizens from playing tennis with each other in public parks. Today most Americans would find such a regulation an offensive attack on freedom of association. I imagine that most would find it just as offensive if the regulation had required blacks and whites to play tennis with each other. Both would violate freedom of association.

Most Americans probably agree there should be freedom of association in the cases of marriage and tennis, but what about freedom of association as a general principle? Suppose white men formed a club, a professional association or any other private association and blacks and women wanted to be members. Is there any case for forcing them to admit blacks and women? What if it were women or blacks who formed an association? Should they be forced to admit men or whites? Wouldn’t forced membership in either case violate freedom of association?

What if you wanted to deal with me but I didn’t want to deal with you? To be more concrete, suppose I own a private company and I’m looking to hire an employee. You want to deal with me, but I don’t want to deal with you. My reasons might be that you’re white or a Catholic or ugly or a woman or anything else that I find objectionable. Should I be forced to hire you? You say, “Williams, that’s illegal employment discrimination.” You’re absolutely right, but it still violates peaceable freedom of association.

Much of the racial discrimination in our history was a result of legal or extralegal measures to prevent freedom of association. That was the essence of Jim Crow laws, which often prevented blacks from being served in restaurants, admitted into theaters, allowed on public conveyances and given certain employment. Whenever one sees laws or other measures taken to prevent economic transactions, you have to guess that the reason there’s a law is that if there were no law, not everyone would behave according to the specifications of the law.

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  • Juan Motie

    Mr. Williams, thank you for a very thought-provoking article!

    I find it repugnant that a state such as Oregon would believe they are entitled to “rehabilitate” those who would express a belief in something or some being greater than government. The case of the state action against the Christian couple who owned a bakery in Oregon, and the state determination to rehabilitate this couple, is such an egregious violation of freedom of association it borders more on fascism rather than the ideals of our Constitutional Republic.

    The true irony of this concept of freedom of association is the illiberal regressive left in America telling us we must fall in line, we must accept their every dictate, or be excommunicated from society while at the same time they know they really want nothing to do with us as in a day-to-day friendly relationship. The left is always telling us “don’t force your beliefs down my throat” yet do not hesitate to force their beliefs down the throats of those who choose to be left alone and practice their own beliefs the way they see fit. Freedom of association is dead in America as long we have politicians in charge the likes of the occupier in the White House and his many evil minions throughout all levels of government.

  • rogerinflorida

    Anti discrimination, “hate speech” and “hate crime” laws are tyrannous. They attack freedoms of speech, association and property rights. They are collectivist pandering to feelings of envy and victimhood. It is the function of such laws to persuade some members of our community that they are blameless for their misfortunes and that there is some conspiracy occurring that needs to be redressed by Govt. These laws relieve people of their obligations to “fit in” and do the right things and further they excuse the most appallingly self destructive behavior. Unfortunately “white guilt” has been harnessed to support the awful laws and until whites reject that guilt and declare “no more”, these laws will be with us.

  • tagalog

    The ancient legal common-law principle of freedom of contract extended at one time to the signs you used to see in restaurant foyers or above the cash registers that said “We reserve the right to refuse to serve anyone.” Not anymore. Is that a good thing or a bad thing?

    Now, instead, we see classes in Black Studies being expressly -in the catalog- restricted to non-whites, cafeteria sections or tables dedicated to self-segregated blacks, and societies for blacks and Latinos barring whites because they’re white. OK or not OK?

    Then there is the feminist attack on all-male schools, while advocating that it’s better for women to attend all-female schools. Verdict on that?

    • rogerinflorida

      To answer your questions:
      1. A private business should be free to serve or not serve at their own discretion, for any, or no reason, whatsoever..
      2. If blacks want to self segregate then let them. Of course whites only clubs and societies should also exist!
      3. All male or all female schools, or other institutions, should be tolerated.
      The kicker in all this is that discrimination should not be tolerated where the institution receives funding from general taxation. It is clearly unjust that any person should be forced to pay (however small an amount) for an institution and then be prevented from using that institution. This, of course brings up the fundamentally tyrannical nature of our taxation system. All Govt. functions should be financed through consumption taxes and all grants, allowances, depreciations, etc. should be scrapped.
      Not a legal view of course, just my opinion.