Origins of the Right to Exclude

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Book Chapter

Publication Date



This chapter examines the case law on free association up to the case of Boy Scouts of America v. Dale. The idea of a right to exclude has two sources. One of these, the older of the two, is broadly libertarian. The newer source is narrower, rooted in the First Amendment's protection of free speech. The earlier, libertarian rationale implies such a broad right to exclude that it is inconsistent with nearly any antidiscrimination law. Some courts adopted it, but this was an innovation of the Civil War period, devised specifically to authorize discrimination against African Americans. The free speech rationale is not so tainted and can provide a basis for limiting antidiscrimination law, but this basis generates a fairly narrow right to exclude.


free association, case law, right to exclude, antidiscrimination law, libertarian right, Free Speech

Publication Title

A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association