“Bans on Political Discrimination in Places of Public Accommodation and Housing”
March 19, 2022 | Tags: free speech, REASON
This new article of mine is now out, in the NYU Journal of Law & Liberty. The Introduction:
In several major cities and counties, in some territories, perhaps in the whole states of California and Montana, and to a small extent in Minnesota, private businesses may not discriminate against patrons based on certain kinds of political activities. In most of these jurisdictions (plus in South Carolina), it's also illegal to discriminate based on political activities in housing (and sometimes in commercial real estate transactions). Some of these bans are narrow, just protecting the decisions to belong to or support a political party. Others are broader, applying to political advocacy more generally, including political advocacy on the business's premises.
I don't know whether these rules are sound in essentially protecting political affiliation and political expression like how most antidiscrimination laws protect religious affiliation and religious expression. But I do believe they are generally constitutionally permissible in many situations, given that property owners generally don't have a First Amendment right to exclude speakers or speech they dislike, and given the broad acceptance of bans on discrimination based on religious affiliation. And I think it's helpful to gather these rules so as to better understand the options that legislators have chosen with regard to this question, especially when evaluating similar new proposals. This is particularly so given the interest in using public accommodations law as a model for limiting social media platforms' ability to block users based on their speech or political ideology.
It's also helpful to see these rules when considering the implications of certain readings of public accommodation law more broadly. Say, for instance, that courts conclude that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations. Indeed, briefs and an opinion in such cases have drawn this analogy.
Here, then, is the list of such bans that I have found, to accompany an older article of mine on laws banning political discrimination by employers. I arrange these roughly in order from narrowest to broadest, but only roughly; the scope of some of them is hard to determine, and the scope of others doesn't fall on a neat spectrum.
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