Update! (Legal Discrimination)

About a week ago, I commented on a post by Dave Roland on the Show Me Daily blog about whether discrimination should be legal. We had an interesting discussion that I thought brought out a lot of complex philosophical issues. It also gave me a chance to expound my liberalism, which is heavily influenced by John Stuart Mill.

After I cited some excerpts from On Liberty, Eric posted the following response:

I’ve never been a big Mill fan, so don’t have much to say about the comment thread so far.

About the larger argument, though, I’d like to point out that legal tolerance for unpopular views is widely accepted as being a crucial part of a free society in some forms. The phrase “I disapprove of what you say, but I will defend to the death your right to say it” (often mistakenly attributed to Voltaire) gets a lot of traction in free speech circles, as well it should. Even if we consider that speech harmful, supressing its expression sets a precedent that’s far more harmful.

Many (most, even) libertarians would extend that sentiment to property rights. Regardless of how strenuously we may disapprove or protest, supressing the right of property owners to exclude people from its use sets a precedent that’s even more harmful. I realize this argument will not be convincing for anybody who accepts any form of government redistribution. Once you’ve accepted that property rights can be abrogated at that basic level, there’s no reason in the world you’d want to avoid abrogating them to protect the rights of racists. And there’s a sense in which I agree — as much as I think society benefits from strong property rights as a primary consideration, I don’t feel sorry for the racist bastards who no longer get to legally discriminate.

That said, there are other more compelling arguments to make. I don’t have the time to make them (and my heart’s not really in it anyway), but here are a couple of links you may find useful:



I responded:

First, I don’t think discrimination and free speech are identical. If we were actually trying to outlaw racism or sexism, I could see your point. But racist people are still allowed to express their opinions in multiple forms and assemble. Discrimination isn’t the kind of speech that brings value to a society. Speech brings value because it creates a “marketplace of ideas”, which, in the long run, is supposed to produce progress, i.e., the best ideas win out. Discrimination is not an attempt to rationally persuade someone of her idea, but rather a coercive act to prevent particular groups of individuals from gaining power so that others may maintain it. As I’ve argued, this causes tremendous harm to the victims of discrimination. While racists’ right to speak and assemble freely and advocate their ideas should be protected, I don’t see why it’s necessary that “free speech” must be extended to allow discrimination.

Second, everyone short of anarchists supports some form of redistribution. Most people, even libertarians, believe that everyone should be granted the right to a fair trial. This is a positive welfare right. But courts require judges, juries, courthouses, court reporters, etc. That is, granting this right will require some form of redistribution. The difference is among political philosophies is ordinarily about how much redistribution is permissible (except with anarchists who do not believe in rights).

Third, you said: “Even if we consider that speech harmful, supressing its expression sets a precedent that’s far more harmful.” This is true to an extent, but we still place a limitation on speech that causes harm. The justification for free speech is that it will lead to a tremendous amount of good and the harm will be limited. But what about speech that is made solely for the purpose of causing significant harm to others? You are not allowed to say or shout things that are false in order to incite imminent lawless action, e.g., a riot. I am fine with that limitation; it’s hard to see how such speech contributes to the marketplace of ideas.

Eric responded:

“First, I don’t think discrimination and free speech are identical.”

Nobody here suggested this. I specifically said they were different things. I don’t know whose arguments you’re addressing, but they’re not mine.

“Speech brings value because it creates a ‘marketplace of ideas’, which, in the long run, is supposed to produce progress”

This is but one of many, many reasons why speech brings value. At any rate, the potential value of speech is really beside the point for me in determining whether it should be free.

“Second, everyone short of anarchists supports some form of redistribution.”

Not true. It depends on the libertarian. I’d venture to say that most libertarian minarchists think that, ideally, taxes should eventually be eliminated altogether. Involuntary redistribution is not necessarily a prerequisite for a minimal state.

“anarchists who do not believe in rights”

Not true, either. It depends on the anarchist, some of whom believe in forms of rights and some of whom do not. Holding a theory of rights and advocating any specific form of practical enforcement of those rights are separate questions.

“I am fine with that limitation”

I am not.

I responded:

I’m sorry. You started talking about free speech when we were talking about discrimination. I just assumed you were inferring the two were the same (”Many libertarians would extend that sentiment to property rights”). I tried to explain why I think the cases are different. At any rate, I thought we were going to talk about petroleum.

So, when you have X-isms, you always run into problems with what the doctrine says in the literature, and the people running around calling themselves X-ists are saying. It was my understanding that minarchists support a minimal state and therefore support a low level of compulsory spending as well, e.g., for courts, military, and police. Compulsory spending necessarily redistributes; that’s a large part of the argument against it. Apparently you don’t believe this. Please explain to me how such a state would operate. I’m not well-read in that literature.

Generally, I think your comment is very vague. You made a bunch of bold assertions, but I didn’t really understand the foundations for any of them. I am certainly interested in understanding if I can. I tried to explain (as best I could) where I was coming from, I’d appreciate if you do the same.

For example,
(1) Why do you think we should have free speech? What are the other reasons it brings value?
(2) What is your criterion/criteria should we use for deciding whether speech should be free?
(3) How does a system with compulsory spending/a minimal state not redistribute? Can you tell me whose system in particular you’re referring to/thinking about (again, the idea is to move away from vagueness)?
(4) What is a right? (It always seems like you guys are talking about something different than I am…)
(5) This probably ties into (1) and (2), but why do you think that say or shouting things that are false in order to incite imminent lawless action should be legally permissible?


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