Friday, September 19, 2008

Private Property and Public Accommodation

RE: "Public accommodation" is a fancy way of saying "private property the government decides to control" http://www.reason.com/blog/show/128855.html

The concept of a "public accommodation" is a legitimate and useful distinction to make in thinking about property, liberty, equality and justice. A system of justice is a means of reconciling conflicts of interest between members of a society. Property is, of course, often involved in such conflicts, if it is not their actual cause. The nature of a particular piece of property and the way in which we make use of it is therefore quite important to understanding and reconciling social conflicts.

The degree to which property is involved in social (for instance, economic) interactions is of particular importance in resolving conflicts of interest that may arise. It is important to make distinctions between the public vs. private nature of property since the degree to which property enters into social interactions affects the ways in which conflicts arise and may be resolved.

Thus we have a concept of "public property", such as a beach or park, and we have come to define patterns and expectations of behavior with regard to it that we consider important to our concept of justice. For instance, public property is not to be used to exclusively promote any one religion or philosophy, if it is to be used in that way at all. To do so would be an injustice.

We also have a concept of "private property", property that is generally not intended for public social interactions and is not used that way very much at all. Our bedrooms are typically not involved in or become a source of public conflicts of interest, and we typically exclude them from the sort of behavioral control and regulation we find appropriate to public places. You might not be allowed to run around naked on the beach, but you probably can get away with it in your bedroom.

Another sort of property that has been conceptualized is that which is private but is used for commercial purposes and, in the current context, for providing services to the general public. This is the concept of a "public accommodation" where there is a high degree of social interaction and where our "public selves" are expressed. For instance, the local bar or theater or hotel.

A public accommodation, like public property, has a greater chance of becoming involved in social conflicts of interest than does strictly private property, because it is intended for social interaction and is actively promoted for that purpose to the public. It is being provided by an individual at personal expense, so it is certainly not "public property." However, it is being provided to the public, and is involved in our social interactions, so the public, as well as the owner has an interest in it. The rules that might reasonably govern the provision and use of "public accommodations" may very well, in the interest of justice, be different from those governing strictly public and strictly private property.

So, we may conceptualize classes of property between strictly public and strictly private and incorporate these distinctions into our system of justice - but why would we want to? What purpose would it serve? A system of justice exists to reduce or reconcile conflicts of interest in our public life. How does a concept of a public accommodation help us to do that?

When a racial group is singled out in public for unfair and unequal treatment, they suffer public humiliation, and a loss of dignity and self respect. However, to prohibit racist ideas, and to punish a racist simply for his beliefs, would also involve a violation of the human right to think for one's self however wrong or onerous those thoughts may be. A racist is a human being and he too has human rights and is entitled to some bare sense of dignity and self-respect, regardless of the fact that he would deny the same to others.

The concept of a public accommodation can help us to to avoid the evil that racists inflict upon our society without at the same time violating our sense of fair play and justice by robbing them of their right to freedom of conscience. By insisting that those who offer a public accommodation treat all members of the public with respect, we deny racists the ability to publicly humiliate minorities and rob them of their human dignity and self respect. On the other hand, within the boundaries of their strictly private property, they may be as discriminating as they like in their choice of friends and who they invite into their home. And they retain the right to engage in debate and advocacy of their cause, while we fight against their hate speech in the appropriate way - with more speech.

At this point it would not be helpful to start a juvenile argument over who hit who first. The libertarian principle of not "initiating force" is of no use in resolving such conflicts. Public humiliation, loss of human dignity and loss of self-respect are real, painful wounds. Telling the victim of this sort of injustice to "buck up" because "words will never hurt you" is useless. The systematic and ruthless infliction of public humiliation on a racial or ethnic minority is a true injustice, and it will result in vengeful and righteous anger, and the intention to strike back in self defense against the violation and the society that allows it. This is the reality of racial and ethnic hatred and we have seen it result in the bloodiest, most damaging and most senseless conflicts humankind has experienced. And we have seen this not only abroad, but even here at home.

History has proven that conflicts of this sort cannot be solved simply by asking minorities to "put up" with public humiliation. The insistence that public accommodations be offered equally to all citizens with no discrimination based on race or ethnic origin provides minorities with human dignity and self-respect, while insisting on freedom of conscience and speech avoids inflicting an injustice on the racist, who, as a human being, is also entitled to basic human rights. The differentiation between strict private property and private property used to offer a public accommodation is a useful means to reconcile, or at least defuse, conflicting interests in a pluralist society, especially a society that has had a history of racial discrimination.

6 comments:

Anonymous said...

I agree with your definition of "Public accommodation" I disagree however that it is a tool of liberty,equality or justice. Private property is private property period. The term Public Accommodation" is nothing more then a socialist term to gradually strip property rights. When in comes to Civil rights minorities are a protected class and it is conduct that is being regulated not property. If you go to sell your home you can't discriminate who you sell to just as a business can't discriminate.
http://en.wikipedia.org/wiki/Protected_class

The bottom line is that a business is private property and entitled to the same equal protection that home owners are. So says the Supreme Court. . . .

Held: There has been no dedication of petitioner's privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center's operations, and petitioner's property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner's tenants.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0407_0551_ZS.html

reACTIONary said...

Marshall, Thanks for commenting.

Why do you think the term "Public Accommodation" is a socialist term? I've only heard in used in connection with civil rights laws aimed at prohibiting discrimination against racial minorities and people with disabilities. A quick web search didn't turn up any other than that.

I don't think that insisting that all citizens be treated fair in public is a socialist concept. I thought it was just American.

Furnace Mgr said...

Do you think gyms that only offer memberships to women should be legal? E.g., http://www.premiereladyfitness.com/

reACTIONary said...

Furnace Mgr, thanks for commenting!


As a man, I don't think that "women only" gyms relegate me to the status of second-class citizenship. The purpose of this discrimination is not to assert social superiority, it is to spare women, especially fat women, the embarrassment of displaying themselves before men. So I'm OK with it, and, in fact, would be against prohibiting it, since it serves a good purpose.

Likewise, I don't see any pernicious social status issues with charging men more than women on "ladies night" or charging women more than men for hair cuts. I don't think there is any reason to be concerned about these practices, but wouldn't get upset if they were prohibited, since I don't see any purpose to them other than increasing someone's take at the door.

The SCOTUS has made racial discrimination an issue of strict scrutiny, the most demanding level of judicial review. Sex discrimination is accorded an "intermediate" or "heightened" level of scrutiny, above the lowest level, but below that of race and issues of fundamental rights. While this isn't exactly relevant to the question, it does indicate the relative level of concern that we should reasonably place on these issues.

Anonymous said...

reACTIONary, Who determines what is "fair" ?

What is considered fair by you may not be considered fair by another man.

What is "American" ? Who defines what America is and is not?

Dave S.C.

reACTIONary said...

Dave, I appreciate you taking the time to provide a comment.

You ask two important questions: What is fairness? and What does it mean to be an American? which is a question of nationality.

The easiest and most intuitive way to think about fairness is the Golden Rule. Is this the way I would want to be treated? I think that is an easily answered question in this case.

A more formal conception of fairness is Sidgwick's principle: Those cases that are alike in all relevant aspects should be treated alike. This is the principle that is applied under the 14th amendment's equal protection clause. In Brown vs. Board of Education, and other such rulings, it was held that race is not a significant or relevant difference between people as far as education (and other) issues at law are concerned.

The question of what makes an American is more complex in nature, but has an interesting aspect. This is the difference between being a citizen of a country and being a member of a nation. Sometimes Americans don't understand that there is a difference between the two, and for good reason.

In some parts of the world, the two are strictly separate. For instance, you might imagine that a naturalized citizen of France might not be accepted as a "Frenchman" by his fellow citizens. In a like manner, it may be possible to imagine a Japanese American being accepted as a Japanese national by the citizens of Japan.

However, here in America, we do not distinguish between being a citizen and being a member of the American nation. When you are naturalized, you are one of us. As Teddy Roosevelt said "There are no hyphenated Americans." This is, as far as I know, a completely unique aspect of American culture and is one of the basic differences between America and the rest of the world. And one of which I am especially proud.

So, all citizens are Americans, all Americans are citizens, and all American citizens are free and equal under the laws of the United States.