Rand Paul, Private Property, and Public Accommodations

In today's article in the NY Times on the Rand Paul, civil rights controversy, the reporters said this:

Mr. Paul said in an interview with Rachel Maddow on MSNBC on Wednesday night that he supported the sections of the Civil Rights Act that applied to public accommodations but had concerns when it came to its applicability to private business; he raised similar concerns earlier in the day about the Americans with Disabilities Act in an interview on National Public Radio.

It's hard to know whether the ignorance evinced by the distinction drawn in the paragraph is Paul's alone or whether the NY Times reporters also think there is some difference between "the sections of the Civil Rights Act that applied to public accommodations" and the sections that apply to "private business." I hope it's the former, but even if it is, they should have used the opportunity to explain what is probably not obvious to most people: the public accommodations provisions of the law are the very same as the sections aimed at privately owned businesses. This is because -- in Title II of the Civil Rights Act -- the question whether an accommodation is public has nothing to do with who owns it. Rather, it has to do with whether it is the sort of facility that opens its doors to all comers who are willing to (1) behave themselves and (2) pay the price charged for the services rendered.

Here is how the law defines "public accommodation":

(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence;

(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station;

(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and

(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.

Virtually all of these establishments are privately owned under most circumstances, although some of them (e.g., stadiums and concert halls) are frequently publicly owned. So anyone who is familiar with this statute -- and, in fact, with the history of the debate over Title II -- knows that if you eliminate its applicability to privately owned businesses, you eliminate the bulk of Title II.

The logic behind applying Title II to privately owned places of public accommodation is that a business owner who opens his private property to operate this sort of business has a very limited interest in picking and choosing among the people he will serve. The relationship that is established by serving a customer under these circumstances is highly attenuated and, as a consequence, being forced to serve all comers (a doctrine with deep roots in the common law of property in its treatment of so-called "common carriers") is barely an infringement of the liberty interests of owners. If you don't want to interact with black people even in the shallow context of casual commercial interactions, don't open a restaurant or soda fountain. Instead, open a private club, which the law exempts from its reach.

On the other hand, the infringement on the liberty of those excluded is substantial. What makes libertarians like Paul and his defenders seem so obtuse -- and the reason you will not find many black libertarians -- is that they categorically elevate even the very attenuated liberty interest a property owner has in being able to pick and choose customers on the basis of race such that it trumps everything else, including, the dignity of black citizens in being able to engage in commercial activity without the risk of humiliation or violence.

If you look in the comments of the thread of my dotCommonweal post, you'll see this logic at work in the arguments raised by one libertarian commenter, who said that the harm suffered by a black person excluded from a soda fountain is of a different nature from the harm imposed when the state coerces, presumably (for example) by mandating non-discrimination in privately owned places of public accommodation. Set aside the fact that the enforcement of owners' "rights" to exclude on the basis of race is built on a foundation of coercion (just look at the video I linked to in the last post, which showed peaceful sit-in protesters being beaten by private citizens before being arrested for criminal trespass). Set aside the networks of private coercion that prevented non-racist business owners in the pre-civil-rights South from opening their doors to black customers for fear of reprisals or lost business. It is only a categorical decision at the outset to privilege rights that bear the label of "property" above other types of interests that allows a person to conclude that denial of interests in access is less significant than the rights of business owners to discriminate among their customers on the basis of race. My guess is that such a prioritization of abstract rights of private ownership over rights of nondiscriminatory access is greatly facilitated by never having experienced the sting of racial exclusion.