Thursday, September 03, 2015

Bakers, Florists, Psychics, and the Structure of Libertarian Thought

by Michael Dorf

This is my third and final installment of my mini-series on the American Sociological Association meeting. (Earlier installments appear here and here.) I'll begin by repeating a finding that was reported on my plenary panel by one of the other panelists. He and his team conducted surveys post-Obergefell on public attitudes towards public accommodations laws. They found that most respondents believe that an individual (as opposed to corporate) business owner (such as a baker or florist) with a religious objection to providing services for a same-sex wedding or to serving LGBT customers should be exempt from public accommodations laws but that there was even stronger support for a simple right of such business owners to refuse service based on a non-religious objection.

That finding is prima facie puzzling. One would think that religious reasons provide a stronger basis for exceptions to public accommodations laws than do non-religious reasons. I suspect that the sort of person who would oppose religious but not non-religious exceptions is primed by the question about religious reasons to want to object to religious favoritism for some of the same reasons that drove the Supreme Court's ruling in Employment Division v. Smith.

But whatever the explanation, the main takeaway is that most Americans want to give exceptions to public accommodations laws for anyone who objects--which is another way of saying that most Americans oppose public accommodations laws (because such laws only have bite against business owners who object to serving customers of a certain sort). Support for exceptions, and thus opposition to public accommodations law, was weaker when the relevant provision forbids race discrimination than when it forbids sexual orientation discrimination but the support for exceptions there too was over 50 percent. So, a half century after the 1964 Civil Rights Act, fewer than half of Americans support public accommodations laws.

For those of us who think that public accommodations laws play an important role in protecting equal rights, that is very disheartening news. Americans appear to be pretty strongly libertarian. How libertarian? An interesting test case might be how to address psychics.

A story in the NY Times last Friday reported on parole hearings of people doing time for various crimes arising out of their business as psychics. It turns out that . . . wait for it . . . psychics aren't actually psychic. And some of them don't just charge $5 per palm reading or tarot card reading (which is plausibly construed as mere entertainment), but string people along for very large sums of money.

I was less interested in the story itself than by the comments, which fell into several categories. Predictably, a few "real" psychics complained that the "fake" psychics were tarnishing the reputation of the "profession" as a whole. As a victim of spellcaster comment spam, I found these comments amusing. More relevantly here, some commenters said, essentially, that if someone is stupid enough to pay a self-described psychic a lot of money to foretell the future, then the sucker should not be heard to complain. But then some other readers responded that the law frequently serves to protect the gullible and vulnerable from unscrupulous people who wish to take advantage of them.

If I had to guess, I'd say that the NY Times readership probably skews less economic libertarian than the U.S. population as a whole, and there's obviously a selection bias in who comments on news stories, so it's hard to draw any firm inferences from reader comments on this particular story. Still, I'd be surprised if there were not a correlation between people who oppose public accommodations laws and people who think that the law oughtn't to protect suckers from foolishly giving their money to psychics.

Economic libertarians who oppose anti-discrimination law (such as Richard Epstein) on the ground that the market will do a good enough job with fewer costs typically distinguish between voluntary market transactions and those involving force or fraud. If one regards psychics as engaging in fraud, then one might oppose public accommodations laws but favor prosecution of psychics who falsely claim to be predicting the future.

However, I suspect that people with libertarian views will want to define fraud as narrowly as possible. It would be surprising to me if there were not a correlation between opposition to public accommodations laws and, say, favoring assumption of risk in tort law. With respect to psychics, a libertarian might say that it's not fraud to falsely promise to predict the future in exchange for money because any reasonable person would know that such predictions are nonsense.

Put differently, the fundamental difference between libertarians and the rest of us is that the libertarians are committed to leaving harms where they fall, absent a very strong reason for government intervention. Broad accounts of fraud and other harms (such as externalities in the realm of environmental regulation) threaten to undermine that libertarian commitment.