Freedom of association and lunch counters

[Volokh, Eugene]

        Was Prof. Black descriptively correct on this?  My sense is that
before the Civil Rights Act of 1964, it was the general assumption that the
lunch-counter proprietor, alongside other property owners, would be left
alone in his decisions about which customers to serve.          I know that
some states had (rarely-enforced, I believe) antidiscrimination laws, and
many had laws requiring certain places of public accommodation to serve
people equally, but did these laws in fact generally apply to the typical
small restaurant?

        Now it's true that most restaurant owners generally didn't in fact
practice a general choosiness about their customers -- but this doesn't tell
us what they had a *right* to do, only what they themselves generally
decided to do.  I don't generally burn flags or wear shirts with profanities
on them, but I have a right to do so, and cherish that right; likewise, I
cherish many of my nonconstitutional rights to choose what to do and with
whom to do business.

        None of this proves that Brown was wrong, or that Wechsler was right
about his freedom of association concern as to Brown; Brown, after all,
involved governmental discrimination, not private discrimination.  Nor does
my argument prove that public accommodation discrimination laws are
necessarily unsound -- one could certainly argue that the interest in
barring race discrimination justifies restricting the store owner's
traditional rights to choose whom to do business with.  But I've always been
quite puzzled about Black's pooh-poohing of the position that there *is* a
property owner's right to choose with whom to do business without government
interference involved here, a right that people have generally treasured
alongside their other rights to choose to do things without government
interference.

        Eugene



Marty Lederman writes:

> Cf. C.L. Black, Jr., 81 Harv. L. Rev. at 102 & n.21:
>
> "It is not a warranted assumption of our civilization that a lunch-counter
> proprietor will practice a general choosiness about his customers, or that
> the law is expected to leave him alone in this regard.  If the equal
> protection clause limits his 'freedom of choice,' it limits something
> which
> people in his position do not ordinarily think about until the Negro comes
> in, and something which has frequently been limited by other kinds of law.
> [FN:  It remains a wonder that so much emotion about the sacred right to
> choose one's customers could be generated and maintained in communities
> where
> segregation laws and ordinances, drastically limiting freedom to choose
> customers as well as other associates, were so long a matter of course.  A
> good night's sleep after the Brown case, and one woke to find that a
> restaurant was just like a home.]"
>
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