Some Strange Consequences of Public Accommodations Laws

All the discussion of Title II of the 1964 Civil Rights Act has obscured the fact that public accommodations laws, especially at the state and local level, have expanded way, way, beyond their original purpose of ensuring that previously excluded minorities are served in restaurants, hotels, and the like. This has happened more via aggressive judicial interpretation of the language of these laws than from the laws themselves, which were phrased to not infringe unduly on private behavior.

For example, the Boy Scouts of America v. Dale case involved the courts of New Jersey declaring that the membership policies of the Boy Scouts violated the state’s ban on discrimination in places of public accommodation. This even though the membership policies of the Boy Scouts are clearly not a “place,” the Boy Scouts of America is not an “accommodation” in the the usual sense of the word, and the membership policies of private organizations are not “public.” (Chapters 7 & 8 of my You Can’t Say That! book deal with the use and abuse of public accommodations laws. Since the book is now available used on Amazon for literally a penny, interested readers have little excuse not to buy it.)

Besides that, the decline of the principle that a business owner has at least some right to exclude what he deems undesireables has led to some very bizarre cases, none more so than the one described below, which a VC commenter alerted me to.

Here’s the story, from a VC post from 2006:

There is a German restaurant called the Alpine Village Inn, in Torrance California. A group of four neo-Nazis went there to eat, each wearing a lapel pin with a swastika on it. The management asked them to take off the lapel pins. They refused. The management asked them to leave. They refused. The management called the police, who arrested them.

Then, remarkably, the Southern California ACLU gets involved, and sues the restaurant for calling the police on the Nazis! This much I’ve confirmed from media accounts. According to the commenter who first alerted me to this story, “the defendants’ insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law!”I’m informed that the restaurant actually lost at trial, and the insurer refused to foot the bill for an appeal.

The lawsuit was brought under California’s Unruh Act, which provides that “all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.” The California courts have held that the protected classes delineated by the Act are not exclusive; the Act also protects arbitrary discrimination by a business establishment based on similar characteristics to the above. Apparently, the insurer thought that “political views” was sufficiently similar to “religion” that the courts would likely rule against the insured. (This was, after all, the Rose Bird Court, which issued a series of absurdly broad and illogical rulings under the Unruh Act; in one of those opinions (Isbister) Bird personally gratuitously insulted a little old lady who donated money to a Boys’ Club as one of the “select few” who wish to be “insulated from the 20th century” because the Boys’ Club didn’t admit girls.)

There are several remarkable things about this story, which occurred in 1986. First, the ACLU of Southern California represented the Nazis, yet, at least by the late 1980s, this local ACLU branch was known as a vigorous proponent of hate speech regulations. How to square that circle, I don’t know. Perhaps the organization had a sudden and dramatic leadership shift. Perhaps the local ACLU leaders saw this as “discrimination based on ideology in public accommodations” and somehow didn’t notice it was also the suppression of hate speech. Perhaps they just had their heads up their behinds.

Second, why was the ACLU concerned about the rights of the Nazi patrons, but not the owners? Why didn’t the owners have a right to send a message that they disapprove of Naziism?

Third, even accepting the absurd premises apparently underlying this lawsuit, that the Unruh Act somehow protects Nazis from discrimination in public accommodation, where was the discrimination here? The restaurant didn’t refuse to serve the Nazis, it simply refused to serve them so long as they were turning the restaurant into a forum for promoting their Nazi views by wearing swastikas. A restaurant couldn’t discriminate against Satanists, does that mean they are required to let the Satanists wear T-shirts showing Jesus being tortured by a gleeful Lucifer?

Fourth, under current hostile environment law, the restaurant could get in serious trouble for not ordering the Nazis to stop wearing the swastikas. Tolerating swastika-wearing patrons would be considering by some to be the creation of an “illegal hostile public environment” for Jews, Gypsies, and others.

If you’re familiar with my views on such issues, you know that I don’t think the restaurant owners can or should be forced to censor the Nazis’ expression of their views (unless the owners censor all points of view except Naziism, which could then be seen as their way of getting around the law and excluding Jews), but I also don’t think that the Nazis can or should have the right to impose their speech on the unwilling owners of the restaurant, who are acting not only on their own behalf, but as agents for their patrons.

Anyway, my jaw just dropped open when I read about this case, and it hasn’t closed yet.

How did a civil rights principle meant to aid African Americans and others who suffered grievous discrimination for generations come to protect the “right” of Neo-Nazis to parade their Nazi wardrobes in a privately owned restaurant against the wishes of management? The short answer is that legislation and its interpretation doesn’t develop from a coherent set of moral principles, but instead based on who is able to persuade the legislatures and the courts to adopt the principles they prefer. The principle involved in Alpine Village case appears to be hostility to the rights of private property owners, not “civil rights.”