Freedoms Allow Discrimination, Even Against You!

Claims, by some, that a private actor does not support exercises of freedom- religion, speech, association or any other liberty- for not adopting the public standard as a private standard is a smokescreen for their distaste of the exercise of those very rights.

It is not an uncommon occurrence that I find someone who mistakes support of freedom as an endorsement of all things controversial. The following example is no exception.

Asking an ardent free speech supporter to prove their creds by adopting your speech is some classless trolling by a classless troll. No doubt.  Alas, for some reason, and sadly frequently (just ask the bloggers at Popehat), support for basic freedoms is erroneously confused with a requirement to adopt as your private stance the same standard that restricts government. Saying, “support my speech or you do not support free speech” is entirely missing the point and is actually anti-free speech. Much of this is a result of the inability of some to distinguish private actors from public. As seemingly simple as this is, it is often lost on even the most intelligent among us, or at the least, used as a cover.

Consider the recent refusal of a sociology professor to attend a freedom of religion conference at the LDS owned Brigham Young University (my Alma Mater, btw). Prof Juergensmeyer from UC Santa Barbara stated, “I have decided that it would be hypocritical of me to participate in a conference in which the issue of religious liberty is paramount when the institution sponsoring it fundamentally violates this principle in its policies towards Mormon students.” The good professor is welcome to attend or not attend any particular event he so chooses, in fact he is exercising his right to free speech by so doing- as it entails the right to associate or not associate with anyone and private individuals are welcome to viewpoint discrimination. But he is wrong on the “fundamental violation” point.

Prof. Juergensmeyer, and the twitter troll, share the same fundamental mistake regarding basic freedoms. Freedoms of speech and religion allow for this very type of behavior, whether you agree with it or not. Nor is it in any way hypocritical. Religious institutions, private individuals, and private institutions are welcome to discriminate based on religious or personal preferences. Granted, BYU may have surrendered some of their freedom to facilitate funding and allow grants to students, but the role of religion for the incoming student body, and those at the school, is not in doubt, and the institution wears its religious mission openly. Yet, religious institutions and schools are welcome to adopt policies to further their institutional and religious goals, but those policies are not fundamentally at odds with freedom of religion, no matter how much you may dislike them. They are a result of religious freedom. Similarly, the afore-cited Sarah McLaughlin, who works for the free speech organization FIRE, is welcome to voice, or not voice, whatever opinion she wishes and may still support the public standard for free speech. What matters is what these private actors support as the public standard to determine their support for liberty, or in other words, what liberties do they believe should be restricted by the government?

In contrast, state-owned schools and institutions such as UC Santa Barbara, the employer of Prof Juergensmeyer, are held to an entirely different standard. They are extensions of the state and as such are required to adhere to constitutional limitations. At UC Santa Barbara, students have free speech rights, freedom of religion, and have equal protection guarantees as found in the 14th amendment.  Ultimately there is a distinct divide between public and private organizations even when they look similar, as private and public universities do. Holding them to the same standard erases most, if not all, of that distinction.

If private institutions and individuals are not allowed to craft their own policies and preferences- even discriminating in their speech or in their support and treatment of different issues, and people- there would be no such freedoms as that of speech, religion, association, or assembly. Insisting that private actors act as a government agency in order to support religious freedom robs it of the very freedom protecting it from government intrusion. Disagree though you may regarding the policies of BYU (which focused in this instance on the enrollment of students leaving the LDS church), or my speech, or this article, none of this is a fundamental rejection of freedoms, but instead an exercise of those freedoms.

Dr. Juergensmeyer, and those reveling in his rejection of BYU, do not understand freedom of religion. It is not intended to bind religious and private institutions, but instead prevent the government from infringing on religious rights. Similarly, those insisting that private actors adopt certain speech as a purity test of their free speech support are similarly mistaken. There is no such freedom without discrimination by private entities. Jurgensmeyer continued his misunderstanding of the fundamental meaning regarding freedoms by stating:

“There may be legal acceptance of such discrimination, but it is discrimination all the same, and I suspect that if a university in a Muslim country were to expel a student who wanted to become a Mormon, BYU administrators would regard this as a violation of religious freedom. And they would be right.”

His example is too general as to warrant analysis (state university versus public and in what country? etc.), but he is absolutely right, BYU discriminates. But it does not discriminate as a public actor, hence the “legal acceptance.”

This is the essence of freedom and why it so important that government entities be restricted in their ability to discriminate while permitting private actors broad discretion. If private entities (whether institutions or individuals) were required to uphold the same standard as public institutions there would be no such thing as freedom of religion, speech or any other treasured liberty. It is untenable to insist that all private organizations and individuals hold to a definition of freedom meant to limit state and public institutions. Those who claim to support freedom, be it of speech, religion or any other type, but fail to make necessary distinctions between public and private actors, are actually offended by the fact that others choose to exercise that freedom in a way they do not support. Ultimately these claims are a smokescreen for their distaste of the exercise of those very rights.

James C. Devereaux is an attorney and freedom fanatic who discriminates based on his preferences and tastes. Questions, complaints and hysterics can be sent to or follow him on twitter @jcdevereaux1. All views are my own.

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