Many recent cases of constitutional conflict have pitted First Amendment liberties of speech, religious exercise, and association against nondiscrimination rules and policies, especially laws governing public accommodations and public forums. To resolve these cases and to understand how civil rights fit together, courts and scholars need a logical and satisfying account of the foundations of public accommodations law. But the law seems to be confused and legal scholars are of different minds. Some assert that proprietors who open their premises and services to the public have no right at common law to exclude or refuse service to anyone. Others find in the common law no proprietary obligations at all except for those which the customary law imposes on common carriers and monopolies. Neither of those views can be reconciled with English and early American writ practice.
When we look at the law as a common law jurist would, we find more complexity. But the complexity is ordered according to conceptual distinctions that are familiar from the common law. When those concepts are laid over the precedents, a sensible taxonomy emerges. Purely private property, secured at common law by actions of disseisin and trespass, is governed by different rights and duties than property whose owner has conferred a general license or undertaking, which is actionable in assumpsit. Both of those forms of private right are different from common carriers and franchises whose conduct is governed by the customary law of the realm. In cases of dispute, that quintessential common-law institution—the jury—answers the question whether the proprietor has acted with an unlawful intention. In these ways, the common law of public accommodations avoids the zero-sum contest of civil rights that has characterized First Amendment and civil rights jurisprudence in recent years. Courts can avoid zero-sum conflicts between rights and can construe constitutional and legal texts faithfully by interpreting public accommodations laws as declaratory of the common law from which those laws emerged.
Keywords: public accommodations, First Amendment, property, civil rights, discrimination, common law
Suggested Citation: Suggested Citation
MacLeod, Adam, The First Amendment, Discrimination, and Public Accommodations at Common Law (November 9, 2022). Kentucky Law Journal, Vol. 112, Available at SSRN: https://ssrn.com/abstract=4273296 or http://dx.doi.org/10.2139/ssrn.4273296
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