[drewcrawford]

The problem with "the freedom to exclude" is that the same argument underpins, for just one example: racial segregation. If the blacks want to go to the movies, well then they can have their own movie theater. We can't abridge the proprietor's "freedom to exclude" people from his own business.

Except we can, and we did, and society was better for it. So as it turns out, the "right to exclude" is more of a guideline than a rule, riddled with dozens of exceptions. And "the current regime has existed for a long time" is not very predictive of long-term societal shifts.

So it is here. You are right that there is fundamental tension between the right of free speech and the right of exclusion.

But one of those is a right so fundamental that it appears first when you ask people to list freedoms. The other is something we regularly cede in large and small ways when we live with other humans in a society. Where the two oppose, there is only one way the arc of history can go.

Our grandchildren will be just as puzzled by the "right to exclude" argument as we are when it is made by the generations before us.

[Arizhel]

>If the blacks want to go to the movies, well then they can have their own movie theater. We can't abridge the proprietor's "freedom to exclude" people from his own business.

I'm sorry, but this doesn't disprove the OP's assertion. Doing business with someone is not the same as speech, and business in general is far more regulated than private life ever was.

As a counterpoint, (in the US) there's still nothing preventing people from excluding minorities from their homes and friendships, and even private organizations are allowed to discriminate by race or sex, and do. (Golf clubs are infamous for this.) Businesses that are "open to the public" are not allowed to; that's the compromise we made, and it's worked out well IMO. If you're a black person, it'd be really awful if you desperately needed a medication, and the one pharmacy in town refused to sell it to you. But being excluded from someone's home or golf club isn't really hurting you.

Similarly, if you run a business, there's many other regulations you must follow: collecting sales tax, using commercially zoned property if you have too many customers, various regulations on how you can treat employees, etc. And part of this is not being allowed to discriminate based on race or sex, unless you have a really really good reason for it (like you're filming a movie about JFK for instance; a black woman isn't going to get far complaining that you didn't audition her for the part). You don't have so many restrictions on your private property.

[drewcrawford]

You misunderstand my argument, and OP's. I'm asserting something like "our children will be protected from firings when they express an unpopular opinion." This would be a regulation that applies to business, so the arguments you construct around business being a regulated sphere are actually arguments in favor of why this will happen. It is also a point that directly disproves OP's assertion that "the first amendment only applies to the government", because here it would be applied to the average employer.

[sanderjd]

As far as I know, at-will employees can absolutely be let go for expressing an unpopular opinion. It is only illegal to exclude a quite short list of "protected classes", mostly (entirely?) defined by immutable traits like race. To be clear, I don't think this "freedom to exclude" should be protected constitutionally the way freedom of speech is, and I'm a big supporter of all the exceptions to it that I know of, but I still think it's a worthwhile concept that should be considered when discussing freedom of speech as it pertains to private entities.

[MugaSofer]

This is currently true, yes. They're expressing hope/belief that this will someday seem unthinkable and strange.

[sanderjd]

You're right, I seem to have misread that comment. Too bad I can't downvote myself :)

FWIW, I don't necessarily disagree with that hope/belief, but I have some questions about how such a thing would work in practice. Clearly, some private organizations (like churches and political parties) rely on the ability to discriminate based on belief. But perhaps there's a clue there for how such a regulation could be drawn - those are not for-profit enterprises.