Jewish World Review Nov. 30, 2001 / 15 Kislev, 5762

Jeff Jacoby

Jeff Jacoby
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Consumer Reports

Tribunals, motorcycles -- and freedom -- I HAVE been following without much passion the debate over military tribunals, which President Bush has authorized for trying suspected foreign terrorists. Such trials would deny due-process protections we normally take for granted -- trial by jury, strict rules of evidence, the right of appeal -- and many thoughtful civil libertarians oppose them.

Robert Levy of the Cato Institute, for example, notes that Bush's order doesn't even restrict the tribunals' jurisdiction to cases of terrorism. Nat Hentoff, the dean of American civil liberties journalists, is alarmed at the prospect that "drumhead tribunals with arbitrary standards" could impose the death penalty even if one-third of the judges oppose it. And as many critics have noted, the tribunals could theoretically try and convict -- even execute -- longtime residents of the United States. These are not trivial worries.

On the other hand, no tribunals have actually been empaneled or even planned, and they would not in any case be authorized to try US citizens. Neither common sense nor international law requires nations at war to presume the innocence of their enemies. If it is kosher to shoot Osama bin Laden on sight or to drop a 5,000-pound bomb on his cave, tribunal advocates say, it is hard to see why he should be entitled to every safeguard the Constitution extends to Americans if we opt to try him instead. As The Wall Street Journal put it in an editorial, "The prospect of trying suspected terrorists the same way we tried O.J. Simpson is on its face absurd."

Kangaroo courts? Sensible wartime forums? I can see the argument both ways. But I can also see that even if military tribunals are created, they will be only temporary arrangements posing no long-term threat to the freedom or decency of our culture.

For a real threat to freedom, on the other hand, consider a story in Monday's New York Times.

Headline: "Tired of Stereotyping, Bikers Turn to Law". Datelined Toledo, the story reports the efforts of Ohio motorcycle clubs to promote a bill banning discrimination against motorcycle riders. In Ohio (as elsewhere), some restaurants and bars refuse to serve customers who show up looking like Marlon Brando in "The Wild One." There are motels where "Vacancy" signs are switched off when a herd of motorcycles swarms into the parking lot. Law-abiding bikers resent the assumption that they are hellraising thugs, and many think such anti-motorcycle behavior should be illegal.

Accompanying the story is a picture of Carl Campbell, who "weighs just over 300 pounds without his biker boots and riding leathers." He likes to ride "a very large motorcycle," the story notes, "ideally in a thundering herd of fellow members" of his club. In the photo, the bearded Campbell glowers, beefy arms folded, eyes hidden behind sunglasses, head covered by a bandana. It is a look some people might call threatening.

Not Campbell, though. "I'm not trying to scare anybody," he insists. "That's just the way I dress." The fact that other people might in fact be scared by him -- diners in a restaurant, say, or guests in a motel -- does not, in his view, give a restaurant or hotel owner the right to refuse him service. So he backs the proposed law, which would slap a steep fine on any business convicted of discriminating against people who operate motorcycles or wear motorcycle-related clothing. Similar bills are pending in other states; Minnesota enacted one in 1998.

And this, I repeat, poses more of a menace to our freedoms than Bush's military tribunals.

You might think a law guaranteeing bikers access to places of public accommodation is fanciful or you might think it long overdue, but odds are you won't find the idea shocking. It simply amounts to one more modest expansion of the civil rights laws we have all come to take for granted.

And that's just the problem.

Civil rights laws were born of a determination to end a particular evil: the racial bigotry and segregation, often mandated by law, that for so long had abused black citizens and robbed them of their rights. To remedy that gross injustice, the new laws limited Americans' liberty in one key respect: They made it illegal to treat people differently on the basis of race. (The laws usually covered religion and national origin as well.) Apart from that, they left freedom of association unabridged: Americans remained free to embrace or reject, to welcome or exclude, to hire or fire, to do business with or turn their backs on anyone at all for any reason at all.

And that was as it should be. In a free society, freedom includes the right to discriminate -- to make judgments about people and to act on those judgments. Ideally, no one would ever act out of bigotry or ignorance. But just as freedom of speech encompasses the right to say things that are foolish or unfair, freedom of association must encompass the right to make decisions about other people for foolish or unfair reasons.

Yet over the years, our freedom of association has been eroded. It is no longer just discrimination on the basis of race, religion, or national origin that is barred. A steady stream of laws has expanded the list to include sex, citizenship, age, marital status, physical or mental disability, sexual orientation, and veteran status. There are campaigns by fat people to make "weight discrimination" illegal, by transsexuals to prohibit "gender identity discrimination," by ex-cons to ban discrimination on the basis of having a criminal record. And now, motorcycle riders.

This constant enlargement of "civil rights" comes at a price. It cheats private owners of their property rights. It replaces voluntary interaction with intimidation and force. It teaches aggrieved groups to use the law to compel changes instead of using persuasion and education to change minds. It weakens civil society, inflates government, and leaves all of us less free.

It is long past time to put an end to the hijacking of civil rights. Defeating the bikers' bill would make a good start.

Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.

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