Once we cease operating under the delusion of equating "privacy" with individual autonomy, one quickly understands that a company, by necessity, operates in the Public Sphere. In a very real sense, there is no such thing as a "private" company. And one rapidly realizes that, no, companies cannot simply do as they wish because they are "private" institutions.
The Public vs Private Spheres
The realm of commerce is fundamentally different from the realm of domestic life. While the public sphere is the "open" realm of shared norms, politics, employment, etc, the private sphere is the intimate realm of the domestic and the Home. These spheres are defined by both an orientation towards the broader society as well as by geographic differences (aka they're in different places).
Here we have a substantive and meaningful notion of Private: there are zones, physical regions or particular relationships and/or institutions, that cannot be invaded because they are social Goods.
In Poe v Ullman, State enforcement of bans on the use of contraceptives were seen as necessitating enforcement that would violate the sanctity of the marital bedroom. The marital bedroom was understood as a Private zone that could not be invaded without compromising a social Good more valuable than preventing contraceptive usage. In Griswold v Connecticut, the Supreme Court upheld the right on the same grounds: marriage and the zonal privacy of the home were cited as being such serious moral goods that State intervention would harm them to an extent that makes such intervention unacceptable.
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred...[and] it is an association for as noble a purpose as any involved in our prior decisions
It was only with Eisenstadt v Baird that the Supreme Court institutionalized the utterly vague and meaningless voluntarist notion of Privacy in place of the meaningful substantive notion that defined it previously (see above):
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.
There is no answer to "what the f*ck is that supposed to mean", because it is a meaningless concept. Every decision is a private matter: individuals ultimately decide every matter in the recesses of their minds.
Furthermore, and perhaps most damning, although the Court claimed that the right to privacy protects decisions “fundamentally affecting” individuals, it nevertheless failed to distinguish between those fundamentally affective decisions protected by privacy from those important decisions that are not, such as the decision to engage in embezzlement, murder, or dog-fighting.
Consider the circularity of the Court's liberalist justification. Because the due process right to liberty cannot protect every act of liberty, the Court has attempted to limit this right to acts or decisions that are fundamental to self-definition. However, the Court must adduce some criteria to distinguish those acts or decisions fundamental to self-definition from those that are not, because people dispute the acts they consider fundamental to their personhood.
So, we must understand that something is "Private" not when it has to do with an individual making a decision, but rather when it has to do with a particular Zone that cannot be infringed upon without compromising some serious moral Good.
But only the State can infringe...right? That's the Public/Private thing - State/Corporation...right?
First, the State is just whatever institution is currently the Biggest Kid on the Block:
The State is a formalized institution recognized by the people of a territory as being the legitimate sovereign of that territory. Rather than wondering where laws are coming from, the State exists to clarify the decrees of sovereignty: it exists to provide a place for people to turn when it isn't clear what the rules are. You can call yourself whatever you want, but if you are the final decision maker of the rules in a territory, you are functionally equivalent to a State.
That a corporation cannot exist without being recognized by the State (perhaps paying taxes, filing regulatory forms, etc.) is simply an extension of this. The biggest kid on the block makes the rules, whether that kid is the United States Congress or a future Tesla-ocracy on Mars.
Second, the Biggest Kid on the Block always decides by fiat what violence is okay and what violence is not. If Jeff Bezos became a kind of neo-feudal warlord in Silicon Valley as California's government collapses, he (or Amazon) would possess the “monopoly on legitimate violence.”
Third, the claim that so-called "private" interactions are consensual while state interactions are not is nonsense. This relies on two Facts:
No matter how many times it is dealt with, the objection that libertarianism does insist that people face the consequences of their own free choices pops up like a game of whack-a-mole. Libertarianism represents a genuinely consensual politics because, while it is true that contracts are considered binding once freely entered, only consensual contracts are permitted.
But this is just the same old question-begging blindness to metaphysical baggage all over again. Contracts and other choices take place in a context, and the context is not itself a consensually entered contract. As a simple example, who ‘owns’ what, and what ‘ownership’ does and does not entail in specific situations, is the tip of the iceberg of the non-consensual context in which every contract is entered, and in the shadow of which it is bargained.
If you happen to find a given nonconsensual context pleasing for ideological or personal reasons it is more likely to be invisible to you. But even then it isn’t something you created by giving consent.
If one has no choice/has no alternatives, one's choice cannot be understood as truly consensual.
At BEST, this justification is highly bounded. And considering that everyone from payment processors to app stores to server providers seem to engage in concerted actions to shut down alternatives that would provide that diversity is just another nail in the coffin for the "exit" nonsense. And, in that sense, the usage of many Non-State institutions does not represent genuine consent (it is rather that people do not have the diverse array of choices the fabled Free Market is supposed to provide).
Any ideology built around "Exit" would need an economic system significantly distinct from what we call "capitalism" today.
So, if we simply take "freedom of association" to be a good, we can't even say that the "capitalism" we live under does a good job of providing this. Yes, in any system you will be limited by material realities and necessities to some degree. But it is clear that this system we live under does far more to limit freedom of association than it claims. Instead, it is a deeply coercive system.
Now, this is not an argument of "the Private sector is barely consensual so who cares, let the State run amok!" The State HAS limits. But it is important to understand that the State has a duty to limit other institutions as well from infringing on the rights of individuals. We must understand that there is no such thing as a neutral institution, and that therefore the most powerful institution is always endorsing and enforcing a particular vision of the Good. The question becomes: what is that vision/what is the standard for delineating between proper and improper action? Is it simply the State saying “let the powerful do what they want” or is there a more substantive notion that must be at play? Truly, the State has a DUTY to govern institutions in the public sphere (including corporations) so that they do not compromise the serious moral goods present in the Private sphere.
Commerce ain't Cozy: A shift in orientation
As I mentioned above, the Private and Public spheres are distinguished by a difference in "orientation" towards broader society. The Private sphere of intimate life and domesticity is "closed" to a significant extent. We intuitively understand this: having sex in public is typically frowned upon (you have brought a Private activity into the Public sphere). On the other hand, the Public sphere of politics, commerce, and social situations is "open" in a meaningful way: we all participate in a set of social norms that are, at the very least, intersubjective and sit outside of the desires of any one individual.
Any institution operating in the Public Sphere, whether that is the State, a corporation, or a charity, is subject to the social norms and rules. It is governed by society as a whole. On the other hand, the Private Sphere is the sphere of individual subjectivity and this is an important Good that must be protected. If an individual wants you off of their personal property, a simple "I don't like you, get out" is sufficient. People need a Zone to express themselves without judgment or ridicule, as subjectivity is an important Good that must be respected. On the other hand, if a business wants you off of its property, it must appeal to some greater moral purpose than just "we don't like you." Even if it is "your" business, you are operating in the Public sphere. You have relinquished your right to govern based on personal sentiment once you enter the marketplace. That doesn't mean the customer always wins. It just means you must abide by a morality more substantive than your personal subjective desires.
The Antinomies of Autonomy (or, Intractable Conflicts of Self-Expressing Individuals)
Insofar as Freedom of Association may be defended, it cannot be defended on the grounds of autonomy:
What happens when the self-expression of individual A is mutually incompatible with the self-expression of individual B? How do we decide who gets to express themselves? Certainly we need a standard outside of self-expression to do so!
Tricky thing, "harm".
Who decides what is "harmful" and what isn't? Who decides whose harm matters more?
Liberalism hides its imposition of morality behind vague, emotionally potent rhetoric. There is no such thing as "freedom". No such thing as "harm". Elites make it up.
Some decisions are conflicts of interests: inevitably one party must be harmed - you must have some standard outside of Harm to justify why person A's prospective Harm is less serious than person B's. Of course, without such an explicit standard (since libertarians seem to think this is possible), it defaults to Might Makes Right: whichever party/person/institution possesses greater Power in the situation is able to avoid harm and inflict it on the other party. I do not believe that 2500 years of philosophy bringing us full-circle to Might Makes Right is a very compelling proposition (especially considering its supporters are some of the loudest proponents of "freedom").
So, we understand that corporations are, by necessity, public institutions. Commerce is necessarily a Public activity, taking place in the Public sphere. (May the Lord have mercy on any family that practices commerce amongst its members). In fact, the blending of Public and Private, the ongoing commodification of everything at the hands of Autonomy-worship and Capital, is a profound evil and one that must be opposed. Of course, it is the very people who most viciously defend "freedom" that are the ones plunging us head-first into a world of Might Makes Right wherein nothing escapes the world of politics and commerce. Is it at all surprising that the Left, those devote Autonomy-worshippers, are as hypercapitalistic as the neoliberals they claim to so thoroughly despise? (Hint: it shouldn't be)
Once we understand that companies are not properly Private but are actually Public, we can begin to actually discuss how the Public sphere is one governed by the society's morality. We must continue to understand that economics is embedded in politics which is embedded in ethics. There is no escaping the question of Good in society. "Autonomy"/"Freedom"/"Liberty"/"Self-responsibility" doesn't cut it. "Harm" doesn't cut it. "Consent" doesn't cut it. It is time for a substantive moral outlook once again. Do not be confused by the Fabrication of "Freedom": it is a recent phenomenon, and certainly a surmountable one. Not so long ago, we had our heads screwed on a little tighter. It's time to get our sanity back.
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