Discrimination in Public Accommodations

The L.A. Times reports:

Santa Monica’s Hotel Shangri-La and its owner discriminated against members of a Jewish organization two years ago when staff and security guards ordered the group to halt a poolside event, a jury determined Wednesday….

Members of the Friends of the Israel Defense Forces had gathered at the Art Deco hotel on the afternoon of July 11, 2010, and, shortly after their party got underway, were told to remove their literature and banners, get out of the pool and hot tub, and stop handing out T-shirts, according to court documents and testimony.

The employees said they were following the orders of hotel owner Tehmina Adaya, a Muslim woman of Pakistani descent….

[T]he jury heard deposition testimony of a former employee, Nathan Codrey, who said Adaya repeatedly used profanity as she insisted that the event stop.

“If my [family finds] out there’s a Jewish event here, they’re going to pull money from me immediately,” Adaya said, according to Codrey’s testimony, which was read by a stand-in because Codrey was out of state and could not be subpoenaed.

Adaya emphatically denied she had ordered the group to halt the event for fear that her family would cut off her financing….

The jury awarded $1.2 million in compensatory damages under the state public accommodations antidiscrimination law (the Unruh Civil Rights Act), plus $400,000 in punitive damages, according to the New York Times. I assume that the high damages award — rare in public accommodations cases — stems from the number of people who are affected.

It seems to me that business owners should have a right to decide which events to allow on their property. If a Pakistani Muslim (or anyone else) doesn’t want pro-Israeli-military events on her property, or if a Pole (or anyone else) doesn’t want pro-Soviet-Army events on his property, or if people don’t want to host pro- or anti-Scientology events or pro- or anti-Catholic events or pro- or anti-Muslim events, they should be free to do so. Public accommodation law in many places does ban discrimination against people based on race, religion, national origin, sex, and some other attributes; but it seems to me that property owners should be free to discriminate based on the message that an event is spreading, regardless of whether the message is tied to particular religious, racial, or ethnic groups. Under current law, bans on such private property owner discrimination based on a speaker’s message are likely constitutional (see PruneYard Shopping Center v. Robins and Rumsfeld v. FAIR); I just think they’re an unsound idea.

Naturally, if the deal has been made with event organizers, the hotel owners can’t then go back on the deal, but that should be a matter of normal breach of contract law, and not of antidiscrimination law (which would apply even if no deal had yet been made). One can debate whether private property owners should be free to discriminate even based on race, religion, and the like in choosing whom to let onto their property. But even if sufficiently pressing reasons justify such restrictions on property rights when it comes to discrimination based on people’s attributes, property owners should be free to discriminate based on what people are proposing to say on their property.

Interestingly, California is one of the few jurisdictions that seems to me to violate this principle, and to actually require property owners to allow speech on their property that they would rather exclude. That’s partly true because of cases such as the California Supreme Court decision in Robins v. Pruneyard Shopping Center, which required large shopping center owners — but basically just large shopping center owners, and not other property owners — to allow speakers on their property without regard to the content of their speech. (Coincidentally, Pruneyard also involved pro-Israel speakers.)

But it’s also partly true because California courts have interpreted the Unruh Civil Rights Act, which on its face seems to bar only discrimination based on race, religion, national origin, sex, and a few other attributes, as barring many other forms of discrimination, including based on occupation and other factors. And the ACLU used the law to sue a German restaurant owner who kicked out four diners wearing Nazi lapel pins — a claim that is potentially plausible under this broad interpretation of the statute. (The claim apparently never went to trial, apparently because the restaurant settled, though I’m not positive of that.)

In any case, based on press accounts it appears that all of this was largely ignored at trial, because the plaintiffs’ theory — which the jury accepted, based partly on Codrey’s testimony — was that the defendants ejected the event because its participants were Jewish, and not because of its political message. Still, this seemed like a good occasion to raise the matter.

UPDATE: I’ve added information about the punitive damages award to the post.