State Senator “Said He Would … Consider Legislative Action If Lowe’s Doesn’t Apologize to Muslims and Reinstate Its Ads [on 'All American Muslim']“

So reports the Detroit News. “[H]ome improvement giant Lowe’s” apparently decided “to yank its ads from the ‘All American Muslim’ reality TV show after complaints from a conservative Christian group.” This is leading to public criticism, but also to the legislator’s threat.

[UPDATE: The senator's spokesman now states, according to the Greeley Gazette, "that any legislative action would probably begin with a resolution. 'We haven’t made a final decision, we have heard from Lowe’s and they want to work something out.' When asked if the legislation mentioned could eventually develop into legal sanctions of some type, [the spokesman] said ‘I don’t think he has that in mind. It just depends. We’re taking this one step at a time.’” But the senator’s letter to Lowe’s apparently stated, “If Lowe’s continues its religious bigotry, I will encourage boycotts of Lowe’s and look into legislative remedies” — which appears to threaten something more than just a “resolution.” The rest of the post assumes that the threat was indeed a threat of coercive government action and not just of legislative speech. Thanks to commenter Adam Steinbaugh for the pointer to the Greeley Gazette article.]

It seems to me that every company has the First Amendment right to disassociate itself from TV programs, newspapers, magazines, and the like that it finds objectionable. To be sure, the First Amendment has been held to apply less strongly to commercial advertising than to other speech, and in particular the Court has held that the government may outlaw ads that state a discriminatory preference for prospective employees or, presumably, customers; see Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations (1973), which the Court has also cited favorably since then. Ragin v. New York Times Co. (2d Cir. 1991) has also held that the Fair Housing Act may impose liability for housing advertising campaigns that don’t include any black models because of “a race-conscious decision” on the advertisers’ part, though the Supreme Court hasn’t spoken to the question. But I take it that there’s no claim here that Lowe’s is trying to deliberately chase away Muslim customers (as opposed to in the real estate context, where it is more plausible that some advertisers might have consciously wanted to have fewer blacks moving into their developments).

Rather, the claim is that Lowe’s is refusing to advertise on a program that sends a positive message about Islam in America. And that decision not to support a particular ideological message — whether motivated by Lowe’s management’s disagreement with the message, or just a decision that this message is too controversial for Lowe’s to endorse — strikes me as part of Lowe’s First Amendment prerogatives. And of course the analysis would be the same if an advertisers wanted not to advertise on a pro-Scientology program, or on a pro-atheism program (think a militantly anti-religious and advertiser-supported version of Penn & Teller’s Bullshit), or on an evangelical Christian broadcasting network. Likewise, some jurisdictions ban discrimination in places of public accommodation, including stores, based on political affiliation; but advertisers have the right to refuse to advertise in pro-Republican or pro-Democrat or pro-Communist or pro-Nazi magazines.

This reflects, I think, the advertiser’s right to be free from associating with, and from funding, political, religious, and ideological messages, which strikes me as a matter that is entitled to full First Amendment protection rather than just the more limited protection offered to commercial speech. Note that United States v. United Foods, Inc. (2001) held that producers were entitled to refuse to even pay money towards a commercial advertising campaign with which the producers’ names weren’t even associated. It strikes me as even more clearly true that producers are entitled to refuse to pay money towards funding an entertainment program with an ideological message, especially when the producers’ names would be associated with the program.

This having been said, the exact constitutional scope of antidiscrimination law as applied to commercial advertisers is not fully clear, and United States v. United Foods, Inc. is itself in some tension with Glickman v. Wileman Brothers & Elliott, Inc. (1997), which United Foods distinguished but didn’t overrule; perhaps a court will conclude that any proposed Michigan “legislative action” against Lowe’s in this case is thus constitutional. But I doubt that it would be so seen, and I don’t think that it should be so seen.

As to the merits of Lowe’s action, it’s hard to tell for sure without having seen the program. But if the program simply depicts American Muslims as ordinary Americans who go about their lives as both good Muslims and good Americans — much as other programs depict American Jews and American Christians the same way — then it seems to me that the campaign to shut off advertising to the program does reflect religious intolerance, and Lowe’s should be faulted for giving in to the campaign. Still, I think that it’s Lowe’s constitutional right to do so.

By the way, note the takeaway practical lesson for businesses, for better or worse: The smart move for advertisers is not to advertise in the first place on programs that might prove politically or religiously controversial, especially if the programs are likely to have relatively small audiences. The decision not to advertise can be made for many possible reasons, and it will be hard to create much outrage about such a decision, even if the suspicion is that the advertiser doesn’t want to be associated with (say) a show that depicts Muslims as normal Americans. But once the advertisement is bought, the decision to advertise is visible, and may alienate one segment of customers. And any decision to pull the advertisement will also be visible, and will thus alienate another segment of customers. So an economically rational advertiser will likely choose not even to experiment with advertising on programs such as this, since any experiment will be very expensive to back out of. Thanks to Ed Grinberg for the pointer.