The Right Coast

March 28, 2005
Volokh versus Stone on Freedom of Speech
By Mike Rappaport

An interesting exchange, over at the Legal Affairs Debate Club, between Eugene Volokh and University of Chicago Law Professor Geoff Stone.

Stone appears to argue for an expansion of antidiscrimination laws to cover discrimination based on political views:

Interestingly, although we routinely prohibit private discrimination of the basis of such characteristics as race, religion, and gender, we almost never prohibit private discrimination on the basis of political expression. For some reason, we seem to think that although a fast food chain shouldn't be allowed to deny employment to blacks, Buddhists, or women, it's perfectly "legitimate" for it to deny jobs to Socialists or Libertarians, or people who voted for Ralph Nader.
Eugene Volokh answers the argument:

The premise of most antidiscrimination laws and social norms is that it's wrong and usually irrational to dislike people because of their race, sex, or theological beliefs. We hope condemning such discrimination will persuade customers and employees to be more tolerant, especially since tolerance is rational and practical, so the burden on employers of having to hire disliked minorities will decrease. And the correlation between behavior and race, sex, or theological belief is quite weak.

But disliking Klansmen is reasonable. We can't persuade people otherwise, and we shouldn't try. Moreover, employees tend to act on their political beliefs. Forcing employers to ignore employees' bad tendencies and patrons' understandable hostility to employees with bad views, isn't fair to the employers who have to pay for such a rule.

If an acquaintance refuses to invite blacks or Catholics to his home, we would rightly condemn him (though we wouldn't try to outlaw such conduct). But I wouldn't similarly condemn someone who refuses to invite Nazis to his home. Political beliefs reflect one's moral character. People who hold evil beliefs shouldn't be imprisoned for them, but they may and sometimes should be socially shunned.

This also applies outside personal life. Not wanting to be served dinner by a waiter who's black is reprehensible. Not wanting to be served dinner by a waiter who's a Klansman, and who likely hates you or your friends because you're black is, I think, understandable and proper. Decent magazine publishers ought not refuse to carry columns by Asians or by Jews. But they may properly refuse to carry not just Nazi propaganda, but also seemingly non-Nazi op-eds by Nazis. The publishers are under no moral obligation, and should be under no legal obligation, to help buttress Nazi commentators' public standing.
And then, amazingly, Stone seems to concede that Eugene is right.

These are really excellent points, Eugene. They help explain why we treat private discrimination on the basis of race, religion, and gender differently than private discrimination on the basis of political viewpoint.
That doesn't happen too much in the academy.