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A (Very) Strange But True ACLU Case:

Man, I wish I had come across this story while researching You Can't Say That! In fact, I'm amazed I didn't, but I only found out about it from a VC commenter on a recent post (Thanks!). It took me quite a while to confirm this really happened, because for some reason it got very little media publicity, but it did. Before I confirmed it, I couldn't believe such a case existed, I think it might be among the most dramatic examples of the abuse of antidiscrimination laws and the principles underlying them I've ever seen.

Here's the story: 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!"

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.

digital commuter (mail):
A restaurant is owned by someone or by some people; hence it is considered private property.

In a private establishment the owner or owners have the right to decide what kind of behavior they don't want expressed.

It's that simple.

In other words you can not in a private establishment that caters to the public exclude people based on race or gender, but you can based on behavior.


Otherwise how can a restaurant exclude people who are barefooted or whose hygiene is health risk to the other guests.

I think Brandeis would agree with me on this one.
2.24.2006 11:36pm
Enoch:
2.24.2006 11:43pm
AF:
Well, given that the case was settled, I don't see what it tells us except that the insurance company was being cautious.
2.25.2006 12:01am
Lev:

Perhaps they just had their heads up their behinds.


Maybe it's just me, but that seems to me to be the case at least 75% of the time where the ACLU is concerned.

Historical Note:


This was, after all, the Rose Bird Court....There are several remarkable things about this story, which occurred in 1986.


In November, 1986, Rose Bird and three other Cal SCt justices were presented to the voters in their normal retention election. All four were fired.
2.25.2006 12:15am
Cornellian (mail):
In a private establishment the owner or owners have the right to decide what kind of behavior they don't want expressed.

It's that simple.

In other words you can not in a private establishment that caters to the public exclude people based on race or gender, but you can based on behavior.


It's not that simple. Could the owners exclude people wearing yamulkes? That's a behavior. How about anyone with dreadlocks? Choosing that particular hairstyle is a behavior too.

Mr. Bernstein, I'm not entirely clear on the basis for your disapproval of this case. Are you saying that the caselaw that pre-dated this situation should not have read the statute so broadly as to include political beliefs? Assuming they've read the statute correctly as covering political beliefs, do you not consider the wearing of swastikas a political belief? Or are you just saying that as a matter of policy owners of private (albeit publicly accessible) premises ought to be able to exclude anyone they wish?

Personally, from a policy point of view I don't have any problem with the owners booting the neo-nazis out of their restaurant. Quite apart from that sort of ideology being inherently objectionable, I would expect there would be a very real concern, particularly in a German restaurant, that getting a reputation as a neo-nazi hangout would quickly put them out of business.
2.25.2006 12:22am
Dave Hardy (mail) (www):
As I recollect from my law school days (i.e., thru three decades of growing ethanol-induced haze) didn't a person who informed police of facts (or at least honestly-reported verions of facts) have a privilege, even if the cops based on those facts made an arrest ?

I also don't see where banning discrimination based on " sex, race, color, religion, ancestry, national origin, disability, or medical condition," bars banning nazis or people wearing swastikas. There's nothing in there about discminating based on politics (doubtless because including this would have resulted in the fall, if not of the republic, of the California university system).

A simpler response might, of course, have been to call the local VFW and suggest that it was time for re-enactment of the Normandy landings, with their younger members to come along and help.
2.25.2006 1:14am
Paul McKaskle (mail):
Two relatively minor points. First, as to Dave Hardy's analysis, the CA Sup. Ct. in In re Cox (early 70s) held that the Unruh Act applied to ANY arbitrary discrimination, including discriminating against someone in a shopping center because he looked like a vagrant. The language in the Unruh Act was deemed to be merely descriptive of what kinds of things were protected, not an exclusive list. Subsequent cases simply fleshed out this broad interpretation. Second, only three justices were denied retention when Rose Bird was up for retention.
2.25.2006 2:47am
Visitor Again:
I posted about the Alpine Village case yesterday and was miffed when Bernstein accused me of spreading an urban legend merely because he couldn;t find the case via Google. You can read our exchange on this in three successive messages here.

I was close friends with the Alpine Village lawyers (although not the insurer's lawyers who insisted on settling the case) and with the lawyers who handled the case for the ACLU. After losing pretrial challenges to the complaint, the insurer decided it would cost more to fight than settle and that legal victory was doubtful anyway even if the case was taken all the way up. I also consulted the defense lawyers on the case, very briefly, before the insurer's lawyers got involved. My ACLU friends kidded me about the case for years, although I never made an appearance in the case.

Here's my original message and post-script, which I repost because they contain points Bernstein does not raise.

BEGIN ORIGINAL POST

I don't agree with Bernstein's attack on anti-discrimiation laws, but I do want to mention one case I think went too far. I knew the defense lawyers in the case.

The Unruh Civil Rights Act in California prohibits discrimination by businesses which serve the public and provides a damages remedy for victims of such discrimination.

A group of guys wearing Nazi regalia, including Swastikas, went into the Alpine Village, a German-themed restaurant and park in Orange County owned and run by German immigrants senssitive to Germany's historical ties to Nazis, and were refused service because of their Nazi dress. They were told they would be served if they took of the Nazi regalia, which, being proud Nazis, they declined to do. They sued, with the help of the ACLU, claiming discrimination on the basis of their political views. The defendans' insurer eventually settled following unsuccessful pretrial challenges to the complaint, believing they could not prevail under California law.

This always seemed a travesty to me. Why should an anti-discrimination law convert a privately-owned restaurant into a first amendment public forum for speech many find offensive, indeed, for speech which symbolizes the worst of discrimination?

I guess the argument is that restaurants ought not to be free to refuse service to people wearig Democratic or Republican Party campaign buttons and Nazis should be treated the same way.

I can see some of you saying no one has the right not to be offended. On the other hand, surely the public should have some interest in sitting down to a relaxing meal without being reminded of the holocaust and other Nazi horrors. And surely the German owners of a German restaurant have an interest in avoiding association with Germany's Nazi past.

It's an interesting case legally because it posits free speech and anti-discrimination interests in an unusual and frustraating way. I guess black-owned soul restaurants must serve customers in full Klan regalia. Muslim restaurants must serve patrons wearing T-shirts bearing depictions of you-know-who, even if they are offensive. And the like. I tu3ww a Swastka tatoo could not readily be removed, but it could be covered.

What say you? Legal analysis most appreciated.

P.S. I believe the California courts have rejected the propiosition that the Unruh Act proscribes only discrimination based on immutable characteristics like race, religion, ethnicity and the like. So that won't fly although I think it would have done a better job of reconciling competing interests, at least in this case..

END ORIGINAL POST

I did get the location of the Alpine Village wrong--it's in Torrance, not Orange County, as Bernstein points out--but that was not urban legend.

http://volokh.com/posts/1140673562.shtml#68334
2.25.2006 2:57am
Tom Holsinger (mail):
Dave,

One of my colleagues in Merced County, Eugene Mash, was found liable for malpractice for correctly stating the law. Alloy v. Mash (1985) 38 Cal.3d 413. Even Rose Bird joined the dissent from that one, which started with:
"With the exception of the majority opinion, I know of no case which suggests that an attorney whose advice is correct may be held liable for malpractice."

But it really is true - in California there is civil liability for obeying the law. Public establishments (restaurants, etc.) can be liable to patrons for not barring other patrons whom the establishments would be liable to for barring.
2.25.2006 2:57am
logicnazi (mail) (www):
While I don't know enough to comment specifically about the Unruh act it certainly seems reasonable and consistant with free speech to create a law that designates certain sorts of private property open to speakers of *any* viewpoint. That is it should be perfectly acceptable for the state to make a law saying that restaurants must not exercise any content control over speech that occurs in that restaurant.

If this sort of law is to be unconstitutional then how could one possibly defend a state law mandating that universities (including private ones) have at least one area where students can protest regardless of the content of their protests (I believe such a law does exist in california). Such a law seems perfectly consistant with the requirements of free speech, in fact a significant boon and the choice of whether to make such a law apply to some spot on a university campus or all restaurants seems to be just a policy choice. While it might offend people's libertarian sensibilities to say that you can't kick whoever you want off your property mandating that you not kick someone off your property is not the same thing as forcing you to endorse their speech (in general).

Of course one might object that this Unruh act only covers certain sorts of speech, i.e., that which is arbitrary to discriminate against, and thus is problematic. However, assuming they really did take arbitrary to mean any content based rule this still seems no different than the university example. A law requiring the university to have a free speech zone could still allow the university to distingush protests involving offensive ideas and protestors who invade passing student's private space and scream at them from inches away. So as long as the Unruh act is interpreted (perhaps wrongly I don't know) so as to be preventing any content based restriction but allowing restaurants to kick out obnoxious teenagers who are being loud and boisterous I see no problem.

As for the 'free speech rights' of the restaurant owner to call the police this is just a red herring. Calling the police to kick them out is not an expression of a viewpoint but effectively an action like ordering a hit on someone and long precedent establishes that this sort of thing isn't protected speech. Had the restaurant owner merely been calling the police to ask if they could kick the person out or neutrally informing them of the situation and allowing them to do as they saw fit this would be a different matter. However, if property owners are able to take any official steps against a group because of the content of their speech so long as they don't physically manhandle them out of the area the entire notion of free speech areas would be bankcrupt. If a university could tell students whose message they don't like that they were required to leave, to inform (and do) call the police on them or otherwise indicate that they weren't allowed to state their message in the free speech area so long as they left it up to the police to physically remove them the 'free speech zone' would exist in name only.

In short if one wants to pragmatically preserve free speech in an era where many of our public spaces (malls, universities etc..) are privately owned the government must have the power (if not a requirement) to make sure that some of these forums can't discriminate based on content of speech. Once you grant this principle the situation you describe doesn't seem that extreme at all.

Also I think there is a subtle question of what that ACLU chapter meant by hate speech that they wanted to ban. It is possible they made a distinction between speech of the form like, "All jews ought to be deported" or "All jews are scum that deserve to die" that occurs in some hateful rally but nevertheless isn't a direct incitement to violence and the wearing of nazi outfits in a dinner.
2.25.2006 3:12am
Jamesaust (mail):
Well, a restaurant is a place of public accommodation (I don't know about the "all" business establishments part).

Why any more able to refuse service than if these swastika-wearing fellows flew on an airplane, took a taxi, sought legal advice or emergency medicine? What next: a pharmacy refusing to dispense chemo meds until the Nazi removes his pin?
2.25.2006 3:17am
logicnazi (mail) (www):
Tom,

I don't really see the relevance of the Alloy v. Mash case. As far as I could tell from the citation you gave the issue basically was whether or not rellying on a 1941 case that had not yet been overruled in 1971 counted as giving correct advice. There are certainly situations in which relying on a precedant that hasn't been definitively rejected is clearly incorrect or even negligent advice.

To pull an example from the critique of Scalia's fainthearted originalism that I have been reading. If a criminal defense attorney advised his client not to raise an 8th ammendment objection to a public flogging because the last case directly on the issue had upheld the punishment that attorney is clearly guilty of negligence (common language notion not legal term but I would guess the later as well).

There are certainly some situations where any competent attorney would have looked beyond specific ruling to infer things from broader trends in jurisprudence. At the very least this makes this case arguable.

I'm a bit more curious about your claim of some public establishment being liable for not kicking out a patron they are legally obliged not to kick out. Do you have some example or source on this?
2.25.2006 3:28am
Fern:
I posted about the Alpine Village case yesterday and was miffed when Bernstein accused me of spreading an urban legend merely because he couldn;t find the case via Google.

Oy vey. Anyone who reads the link you provided will see that Prof. Bernstein didn't "accuse" you of anything. He said it "sounds like an urban legend" because he couldn't verify what you said (FYI, the Westlaw news database covers the 1980s and has two articles that I can find on this incident: 1988 WLNR 462981 and 1986 WLNR 484649). If anything, Prof. Bernstein should be annoyed that you called him a young "whippernapprr[]." [sic] Unclench, it's good for your health. :-)
2.25.2006 4:22am
Visitor Again:
Fern, it's miffed, not clenched, in which case I go stronger than whippersnapper. For what it's worth, one of the best ways to discourage the free flow of information is to tell a source publicly that you doubt his word, although that is the sort of thing to be expected from whippernappers, even on a board whose members chirp about their civility.
2.25.2006 6:13am
DRS:
Prof. Bernstein:
Hey, it's California.
Perhaps "Context" shaped the insurance carrier's calculus:
Suggested Context: The California State Constitution; California tradition of increasingly subordinating property rights to expressive rights of the individual; Pre-Unruh Act statutes; Unruh Act; Long line of cases juxtaposing all above; 1979 holding in Pruneyard.

You indicate based on your research the Unruh Act formed the basis for the plaintiffs/nazi's action against the property owner. Other factors to possibly consider along with Unruh:
California's Constitution affords higher degree of protection to speech than national Constitution. Article I, section 2 of the state Constitution reads:

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Stanley Mosk, one time Cal Sup Ct. Justice writing a dissent in Diamond v. Bland , 11 Cal.3d 331 (1974)
"Without citing chapter and verse, I deem the 27 sections in article I of the California Constitution, comprising our declaration of rights, to be arguably more embracive than the first 10 amendments, plus the Fourteenth, of the United States Constitution."

PRE-UNRUH STATUTORY TRADITION:
Long before the Unruh Act was passed in late 50's, and on through the early eighties, California had evidenced a history of increasingly of subordinating property rights of the individual to individual and collective right to "expressive" conduct.

Two seminal California cases are predicated on anti-discrimination statutes that pre-date Unruh Act. In both, the courts were asked to determine whether the [pre-Unruh] California Civil Rights Act statutes prohibited only discrimination on grounds of race, religion, and national origin or prohibited all arbitrary discrimination.

In Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734 , Cal Supreme held "....the Civil Rights Act barred the manager of a race track from expelling a patron who had acquired a reputation as a man of immoral character." (Orloff's moral turpitude? He was a convicted gambler. No really.)

In Stoumen v. Reilly (1951) 37 Cal.2d 713, the court "...recognized the right of homosexuals to obtain food and drink in a bar and restaurant: Members of the public of lawful age have a right to patronize a public restaurant and bar so long as they are acting properly and are not committing illegal and immoral acts; the proprietor has no right to exclude or eject a person 'except for good cause,' and if he does [3 Cal.3d 214] so without good cause he is liable in damages. (See Civ. Code, §§ 51, 52.)"

UNRUH ACT:
Unruh enumerated specific protected classifications that could not be discriminated against. Consistent with California historical tradition, later court rulings found Unruh Act "...enumerated categories are illustrative, rather than restrictive....Beginning with Cox in 1970, the Unruh Act has been construed Unruh to apply to several classifications not expressed in the statute."
Enter Expressive Speech:1979
Robins v. Pruneyard Shopping Center , 23 Cal.3d 899. March 30, 1979.

Pruneyard stood for the proposition that the protection afforded property interests by the due process clause of the United States Constitution can be subordinated to personal expressive rights protected under California's Constitution.
"Pruneyard" corporation owned a California shopping center. On its property, Pruneyard enforced a policy that did not permit any tenant or visitor to engage in publicly expressive activity, including the circulating of petitions, that is not directly related to the commercial purposes.
The record indicates lower court found Pruneyard policy limiting public expression to have been strictly and disinterestedly enforced.
The California Supreme Court held that publicly expressive activity is protected under Cal. Const., and could not be unreasonably limited by the owner of the property. (O.K. if Time, Place Manner/viewpoint neutral etc.)

Juxtaposing of all above, fosters a legal and social environment that subordinates property rights to collective synthesis of individual expressive rights.
The California Supreme Court wrote:

We do not minimize the importance of the constitutional guarantees attaching to private ownership of property; but as long as 50 years ago it was already '"thoroughly established in this country that the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society. Although one owns property he may not do with it as he pleases any more than he may act in accordance with his personal desires. As the interest of society justifies restraints upon individual conduct, so, also, does it justify restraints upon the use to which property may be devoted. It was not intended by these constitutional provisions to so far protect the individual in the use of his property as to enable him to use it to the detriment of society. By thus protecting individual rights, society did not part with the power to protect itself or to promote its general well-being. Where the interest of the individual conflicts with the interest of society, such individual interest is subordinated to the general welfare."'" (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 403,

On a Less Academic Note:
Prof. Bernstein, you seem to wonder why the insurance carrier would settle the matter:
Perhaps insurance carrier lawyers considered:
1.) Cheaper to settle than to create "attractive nuisance" if you will, by litigating high profile/high octane issues thereby inviting every white-supremacist in the region to burn down the Alpine Inn. More than once.
2.) Southern California ACLU had a stable of litigators well versed in First amendment law (go to ACLU So Cal web page....) who likely worked for a mix of non-pecuniary benefits and cheap bucks. Is the litigation cost/benefit calculus of a non-profit with a stable of relatively low-cost First Amendment lawyers looking for a cause celebre the same as the cost/benefit calculus of a for profit corporation?
2.25.2006 6:40am
Simon (391563) (mail) (www):
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.

And so ends not only the modern era of civil rights laws, but hundreds of years of common law tradition. III Blackstone's Commentaries, ch. 9 pg 164.

Amen and amen.
2.25.2006 7:15am
DavidBernstein (mail):
I'm not surprised that the insurance carrier settled, or at the crazy state of California law, or even at the idea that public accommodations have the responsibility to serve all comers. I am surprised at the ideas that (a) you can't ask people to take off Nazi pins in your own restaurant, and then serve them like anyone else. Does the cafeteria in the NAACP building have to allow white people wearing sheets to eat there?; (b) that the ACLU, especially the ACLU of So. Cal., which is known for its sympathy with hate speech rules, would represent the Nazis in this case, as opposed the restaurant owner. The ACLU of So. Cal. would REQUIRE a university by law to punish a student who expressed Nazi sentiments about Jews, so it's very odd that they would deny a private owner the authority to voluntarily ban Nazi speech; and (c) I think the idea of protecting people from discrimination based on viewpoint (from private parties) is silly.

Visitor Again, I'm sorry I doubted you, but lots of honest people sincerely believe urban legends.

And yes, I believe that the California law requiring universities to adhere to First Amendment standards is unconstitutional (and dumb), and I so argue in You Can't Say That! and in this paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=263353

A similar law is probably not unconstitutional (under my own analysis, not the courts, and under the First Amendment, though I think Pruneyard was wrong and it's a taking) as applied to a restaurant, but it's still extremely dumb.
2.25.2006 9:48am
DavidBernstein (mail):
Oh, and Blackstone was talking about innkeepers, who were typically monopolists, with the only inn for many miles on a particular route. And I'm sure even then Blackstone would have allowed innkeepers to require guests to take off their pro-French pins.
2.25.2006 9:50am
Who Would Have Guest:
I always find some strange humor in posts like this... by people who should know better, but are typically either being disingenuous or blinded by the fact that they don't like the ACLU's clients.

The ACLU defends speech rights at their margins. The people who push those margins tend to be people "we don't like much". That doesn't mean that there is anything wrong with the ACLU's representation of that client to protect our civil rights.

A local ACLU branch may well have different priorities than the national ACLU. What else would you expect? (Not that the suggestion that "the ACLU supports speech codes so they should litigate against Nazis" is a compelling argument, even if it were true and not just... how did Bernstein initially describe the story which inspired his post?)

The 'First Amendmen' stance of this blog seems to be "speech we don't like should be banned; speech that offends those we don't like should be disseminated as widely as possible; speech that expounds hatred against Muslims and Arabs is 'as good as it gets'". But perhaps I've only seen a biased sample.
2.25.2006 9:55am
sbw (mail) (www):
If the restaurant owners had said, "Reluctantly we will serve you, but you are ignorant, unthinking, boorish asses for wearing those pins." Would they have been open to litigation under other California laws?
2.25.2006 10:05am
DavidBernstein (mail):
WWHD: All three California branches of the ACLU favor speech codes. You can look it up. The ACLU's record on freedom of expression that conflicts with antidiscrimination laws is decidedly mixed. See this
piece.
2.25.2006 10:27am
John (mail):
This situation illustrates an interesting philosophical point. As soon as we interpret "speech," as in "free speech," to include conduct, it turns out frequently that competing messages cannot simultaneously be given.

It is always possible, when speech means words, for two people to express competing views. However, when conduct (e.g., wearing a swastika) is speech, then it can be literally impossible for counter-speech (prohibiting swastikas) to co-exist.

The problem here is fundamentally what counts as the sort of speech is entitled to protection.
2.25.2006 10:36am
Hans Bader (mail):
Bernstein is totally right on this one. The ACLU is utterly hypocritical in demanding that the restaurant be forced to permit racist speech similar to speech that the ACLU has itself sued to silence on the grounds that it constitutes racial harassment.

The ACLU itself successfully advocated banning hate speech not even spoken to the plaintiff in Aguilar v. Avis (1999), getting the California Supreme Court, by a 4-to-3 vote, to uphold an injunction banning a man from saying even a single racial slur outside the hearing of his Hispanic co-workers. The ACLU believed that any single racial slur could revive a "racially hostile environment" that was created by racial slurs that even the trial judge who issued the injunction admitted had stopped years before. In its amicus brief supporting the hate-speech gag, it claimed that such slurs were not speech but "verbal acts." (How Orwellian to believe that freedom of speech can be circumvented by just labeling speech as "conduct").

So the ACLU believes that hate speech is banned by harassment law even when it is not spoken to the plaintiff (and thus could presumably include passive wearing of a swastika). (Even the San Francisco Chronicle, which applauded the restriction on hate speech in Aguilar v. Avis in its editorial pages, admitted in its news coverage that the restriction was "unprecedented" and shocked First Amendment experts).

Moreover, the ACLU believes that undirected hate speech is properly banned as harassment not only in workplaces but also in public accommodations, under California's Unruh Act. For example, it has sued schools for tolerating antigay speech by students under the theory that this fosters a hostile public accommodations environment under the Unruh Act.

And a restaurant, even a small one, is defined as a public accommodation under the Unruh Act. The ACLU has sought to extend the Unruh Act's reach even further, to boy scout and cub scout dens and packs, as it unsuccessfully advocated in the Curran v. Mt. Diablo case (which the boy scouts won only after a decade of litigation and at an enormous cost), in which it sought to force the scouts to select atheists and gay activists who disagreed with the boy scouts' positions.

By the way, when I asked a lawyer who litigated on behalf of the Southern California ACLU in 1995 whether the government had a "compelling" interest in eradicating discrimination against Nazis that would justify limiting the First Amendment free-association rights of those who disagreed with them, he said that it could.

I do not think that the government has even a legitimate interest, much less a compelling interest, in preventing private citizens from discriminating against Nazis.

While I do not think that the government should ban Nazi hate speech, the First Amendment applies only to action by the government, such as the award of damages by the courts for "discriminatory" or "harassing" speech. (See A.H.D.C. v. Fresno (9th Cir. 2006) (First Amendment limits Fair Housing Act lawsuits by one private party against another); Meltebeke v. B.O.L.I. (Or. 1995) (Unis, J., concurring) (free speech clause limits award of damages by civil rights agency for "harassment" based on protected speech). It does not prevent private entities like restaurants from voluntarily disassociating themselves from racists.

So if I owned a restaurant, I would fire any Nazi employee and refuse to serve Nazi would-be customers.
2.25.2006 10:39am
Joel B. (mail):
This is just another perfect example of ACLUDS! (I'm just waiting to hear someone say.)
2.25.2006 10:58am
Tom Holsinger (mail):
logicnazi,

I practice within the jurisdiction of California's Fifth District Court of Appeals.
2.25.2006 11:47am
Enoch:
If the restaurant owners had said, "Reluctantly we will serve you, but you are ignorant, unthinking, boorish asses for wearing those pins." Would they have been open to litigation under other California laws?

They'd be open to a beating from the Nazis. =)

Meanwhile, a similar but more recent case:

About 300 followers of an organization labeled a "hate group" will gather at a Herndon hotel today for a conference at which speakers will expound on what they see as the global threat of immigration to whites and the moral and intellectual differences among races.

American Renaissance, a Fairfax County-based journal, will hold its seventh biennial conference at the Hyatt Dulles hotel. Its focus will be the "defense of Western civilization," organizers said.

Immigrants are "changing [white] societies in ways that most white people don't like," said Oakton resident Jared Taylor, the journal's editor.


Hyatt is taking some heat for hosting the meeting:

The Hyatt hotel chain has come under fire for agreeing to host a conference this weekend sponsored by a white supremacist group.

Hyatt spokeswoman Lori Armon said the opinions of those at the conference do not necessarily reflect those of the Hyatt Corp. "However, we do not discriminate against any of our guests or organizations with which our guests are affiliated," she said.
2.25.2006 12:03pm
Justin (mail):
Oh those Nazi-loving Nazi-hater ACLU guys, will they ever learn that by civil liberties they mean "someone else's narrow view of liberterian thinking?"
2.25.2006 12:32pm
JGR (mail):
For what it's worth, you CAN make a strong case that Nazism is a religion owing to a number of mystical and occult beliefs associated with it. (Whether Nazism should be viewed as a religion or philosophy or political movement or social movement is the sort of question that academics can debate forever precisely because there are valid arguments on all sides.)
This touches on a question that I feel doesn't recieve enough attention - the privileging of religious belief over rational belief in many anti-discrimination laws and rules. A mainstream conservative who believes in color-blindness has less rights in many areas than a member of the Christian Identity Movement - a white supremist hate group that is also a religion.
Ironically, the same contradictions sometimes work in reverse. Hence the shooters in the Columbine school incident were allowed to wear Nazi symbols to school, but not Christian crosses.
The line between a religion and a philosophy is itself often fuzzy. Many classic works of Western philosophy - from Plato to Schopenhauer - read as much like theology as critical thought.
2.25.2006 1:02pm
Frank Drackmann (mail):
I hate California Nazis
2.25.2006 1:06pm
Bleepless (mail):
Let's see now: liberals are daft and insurance companies are cowardly. So what else is new?
2.25.2006 2:07pm
AppSocRes (mail):
In a recent movie, there were words to the effect that the women in California give the impression that someone lifted up the US by the East Coast, gave the country a good, hard shake, and only the sane ones held on and stayed where they were. Perhaps the same holds true for the voters, law makers, and judges.
2.25.2006 2:20pm
Anderson (mail) (www):
AF: Well, given that the case was settled, I don't see what it tells us except that the insurance company was being cautious.

A voice of sanity!

I like it when Nazis wear swastika pins. It makes it easier for me to decide to have nothing to do with them. Same as my take on flag-burners.

But seriously, folks. If these guys had all been wearing Ayn Rand T-shirts and the restaurant owner had thrown them out (on literary or philosophical grounds, or goodness knows, both), many of y'all would be frothing at the mouth ... against the owner.
2.25.2006 2:30pm
Anderson (mail) (www):
Oh, and Enoch--great Onion link, thanks!
2.25.2006 2:31pm
Visitor Again:
David Berntein,

Apology accpted. Thank you. However, I don;t think many contributors to this board believe urban legends or would spread them without indicating lack of personal knowledge. And the episode does go to show that even the best of research efforts may still have holes in it.

While at the Alpine Village meeting, I went out for a smoke and ran into Irv Rubin, national chairman of the Jewish Defebse League, who died in strange circumstances at the L.A. County Jail a few years ago. He was very pleasant in conversation, much less strident and more open to distinctions and qualifications than media portrayals might have led one to expect. We laughed that most of the lawyers of record on both sides, the Alpine Village and the ACLU, were Jews who were each convinced they were taking the correct civil liberties position in the case. He was philosophical about the ACLU's involvement; he said the ACLU had come to his aid in the past and he had no animosity to the organization. An interesting fellow, to say the least.
2.25.2006 3:31pm
Visitor Again:
Sorry, that was not intended as a slight; I meant Bernstein, not Berntein
2.25.2006 3:33pm
logicnazi (mail) (www):
Tom,

I didn't mean to question the veracity of your claim. It sounded like something that might very well be true. I was just curious and was hoping you could give an example or a pointer to something that describes it in more detail. I'd be quite interested to hear any personal experience that convinced you on this point.

Given that I had just stated I didn't understand the relevance of your other point I can see why this would be confusing and I apoligize if it looked like I was questioning your veracity.
2.25.2006 3:53pm
Tom Holsinger (mail):
logicnazi,

I was providing information, not taking offense. Those familiar with the reputations of the various California appellate courts would have understood my reference.

Abandon logic, reason and sanity when practicing before the 5th DCA. I.e., if you think Professor Bernstein's story and mine are strange or unrelated, move to California's San Joaquin Valley.

If the 9th Circuit had a farm club, it would be the 5th DCA.

"Don't try to understand the ruling - it's the 5th."
2.25.2006 7:30pm
DRS:
Prof. Bernstein:
You asked:
(a) ....you can't ask people to take off Nazi pins in your own restaurant, and then serve them like anyone else. Does the cafeteria in the NAACP building have to allow white people wearing sheets to eat there?

NO!!
Please let me know if and why you disagree: By my reading,
Dale,Hurley, as well as your article "The Right of Expressive Association," support a NO answer to the question you posed.
—-
Much like the Boy Scouts, both the NAACP as well as the KKK are private, associative organizations seeking to promote a set of expressive messages. Enforcing right of KKK to join NAACP members at NAACP cafeteria for dinner with their hoods and sheets on, would arguably significantly affect NAACP members' ability to carry out their organizations intended purpose. On that basis, NAACP can exclude the KKK from organization's dining facility.

Of course, support for NAACP provided by Hurley and Dale turns on texture of facts and circumstances and the extent to which your suggested cafeteria is a "public accomadation," the degree of the nexus of the eating facility to the NAACP's functional efforts to promote its expressive message.
————————
SO WHAT HELP CAN LAWYERS OFFER ALPINE PROPRIETORS?
Alpine could offer Nazis cash to go away. Sounds like such a "subsidy" would have unintended consequence of attracting more Nazis.
Better approach: Apply lessons of Dale and Hurley. Alpine proprietor could establish a quasi-relationship with expressive organization....sign contract with JDL, youth soccer, Boy Scouts, church, NAACP... dedicating a nominal per centage of Alpine restaurants net to the selected organization....and create an atmosphere reasonably appearing to promote/consistent with the organizations expressive message.
2.25.2006 8:07pm
DavidBernstein (mail):
DRS, I was assuming that the NAACP cafeteria was open to the public, and was a "public accommodation;" in such circumstances, I don't think Dale and Hurley would make a difference.
2.25.2006 9:02pm
Sarah (mail) (www):
This whole thing strikes me as odd; I worked at a major tourist destination in SoCal (Disneyland) for years, and we routinely advised our guests that they had to turn their t-shirts inside out, take their hats off, etc., or be removed from the facility. Mostly it was swear words and graphic images, though we'd probably do the same thing for Nazi symbols as well. Is it just because Disneyland, Universal Studios, et al put notices on the admissions media that say they can remove customers or refuse service at any time? Because I can't imagine that this restaurant didn't have a sign like that up, seeing as every restaurant I've ever been in seems to have had one up. Then again, I was a child in 1986; perhaps this was the time that the signs were going up. My old Disneyland passport states: "It provides the individual whose name and picture appear herein with pre-specified, revocable privileges, which may be changed or cancelled at any time." It sounds very typical to me. Would Disney be open for a suit for demanding someone cover up or remove a swastika?
2.25.2006 9:17pm
Anderson (mail) (www):
Would Disney be open for a suit for demanding someone cover up or remove a swastika?

Disney's lawyers could crush the ACLU like a bug ....
2.25.2006 9:22pm
yclipse (mail):
This post perpetuates a misunderstanding in citing "hostile environment law" as if it is a separate theory of liability and as if it would apply in a restaurant. "Hostile environment" applies only in workplace discrimination claims, and has little to do with public accommodations claims. Generally, I do not have a right to be free of a hostile environment in a restaurant. At least outside of California.
2.25.2006 11:28pm
Lev:
Yes, I misremembered.

Rose Bird and two, not three, other justices of the Cal SCt were fired in 1986.
2.25.2006 11:44pm
Smithy (mail) (www):
"Disney's lawyers could crush the ACLU like a bug ...."

Let's hope so. Someone needs to put the Al Qaeda Comforting Liberal Union in their place at some point.
2.26.2006 12:29am
DRS:
Prof. Bernstein:
You rhetorically asked:

(a) ....you can't ask people to take off Nazi pins in your own restaurant, and then serve them like anyone else. Does the cafeteria in the NAACP building have to allow white people wearing sheets to eat there?

Thanks for the clarification, but I continue to wonder why that negates the applicability of Dale/Hurley.
Dale/Hurley stand for the proposition that if a nexus can be found to exist between the NAACP restaurant, and the NAACP expressive message, and the KKK peaceably sitting in the NAACP eating establishment with their sheets on serves to diminish or dilute the NAACP's message, then NAACP can legally exclude the KKK.

Assume NAACP purchased the very Alpine Inn of Torrance. Open to the public, offering public accommodation. Lets further assume the Alpine Inn is not connected to NAACP offices or headquarters. [I am certain you would agree were that the case, Dale/Hurley would apply] Assume Alpine Inn to be a stand alone eating facility that sits in the middle of "restaurant row." It is in fact a traditional commercial restaurant that serves food like a cafeteria.

YOU ARE NOW ENTERING AN NAACP FREE ZONE.
For Dale/Hurley NOT to be applicable at the NAACP owned Alpine Inn, no indicia of NAACP's expressive purpose, or NAACP's set of messages, could be found present at the Alpine Inn. Some examples of NAACP indicia not allowed at NAACP owned restaurant: NAACP trademark logos, signage, employer (NAACP) distributed NAACP lapel pins; NAACP napkins;teens and adults employed at the NAACP/Alpine Inn as part of the NAACP program to inculcate its message into the workers as well as the community; NAACP produced videos and music; visiting elementary school children brought to Alpine Inn to hear motivational speeches as they eat; NAACP meetings or rallys.

If and only if Alpine Inn remains NAACP sanitized would Dale/Hurley be inapplicable. How likely is that?

P.S. The distinction above is not a false one. You (inadvertently) chose the word "cafeteria," not restaurant. That conjures notions in your readers of KKK being able to march into cafeteria located at NAACP headquarters or offices, sheets hatefully flowing, and eat with impunity. That does not seem to me to be the state of law.
2.26.2006 2:37am
DWPittelli (mail) (www):
"Hostile environment" applies only in workplace discrimination claims, and has little to do with public accommodations claims.

So it is for the sake of the poor working waitresses that we must threw out the Nazis. Even if all are "Aryan" types, they might reasonably react due to minority boyfriends or the Nazis documented record of sexism and violence.
2.26.2006 12:04pm
Hans Bader (mail):
Where did commenter Yclipse get the idea that the courts have limited "hostile environment" to workplace discrimination claims? That is imputing to the courts a degree of self-restraint and common sense that they manifestly lack in their failure to recognize meaningful limits on harassment liability.

The Supreme Court applied hostile-environment liability to educational settings in the 1999 Davis v. Monroe County Bd. of Educ. case (over a four-justice dissent by Justice Kennedy noting that this would raise serious First Amendment problems; the parties did not raise or brief any such First Amendment issue).

And several federal appeals courts have applied it to "hostile housing environments," as Eugene Volokh notes.

It is common for defenders of workplace hostile-environment harassment restrictions on speech to claim that such restrictions are "narrowly tailored" and thus a constitutional exception to First Amendment norms because they only apply in the workplace. See, e.g., Aguilar v. Avis Rent A Car System (Cal. 1999) (Werdegar, J., concurring) (arguing that injunction against racist speech to prevent hostile work environment was narrowly tailored because spealer could still speak freely outside the workplace, such as in his favorite restaurant).

But when subsequently presented with a non-workplace harassment case, they invariably contradict their earlier claims about the uniqueness of the workplace by cheerfully extending harassment law to the non-workplace setting at issue.

For example, a NOW LDEF leader justified broadly restricting speech in the workplace in the early 1990's in the Jacksonville Shipyards case (in which a judge issued an injunction that would arguably prohibit even romance novels in the workplace) on the grounds that workplaces, unlike educational settings, are not expressive fora, and thus are subject to hostile-environment regulations.

But in Davis v. Monroe County Bd. of Educ., in the late 1990's, NOW LDEF advocated extending harassment law to colleges, universities, and primary and secondary schools, even though lower courts had struck down campus "hostile-environment" harassment codes as violations of the First Amendment in UWM Post, Inc. v. Board of Regents (1991) and Dambrot v. Central Michigan Univ. (1995).

The Dec. 8, 1998 amicus brief of Students for Individual Liberty, et al., in Davis v. Monroe pointed out NOW LDEF's inconsistency, and argued that the First Amendment bars hostile-environment liability in the university residential setting, but the Supreme Court did not reach this argument, which was not raised by the parties at any stage of the case or addressed in any of the lower court rulings in the Davis case, which involved targeted sexual advances rather than conversations or other clearly-protected speech.

Justice Kennedy's dissent in Davis did raise the issue, however. He argued that applying hostile-environment regulations to student conversations in college dormitories would raise serious First Amendment problems).
2.26.2006 1:00pm
Bob Van Burkleo (mail):
So this means I should be able to kick evangelical Christians carrying bibles and wearing crosses out of my business when ever I like?

Sounds good to me.
2.26.2006 5:56pm
Clayton E. Cramer (mail) (www):

So this means I should be able to kick evangelical Christians carrying bibles and wearing crosses out of my business when ever I like?

Sounds good to me.
As long as you aren't receiving a government subsidy or monopoly privilege of some sort, go ahead. Why would I want to put money in your pocket, anyway?
2.27.2006 11:05am
Clayton E. Cramer (mail) (www):
When I was living in Santa Monica in the early 1980s, rent control activists were major players in local politics--after all, you have a right to live three blocks from the ocean, and pay $335 a month in rent, don't you? Anyway, a landlord in Los Angeles declined to rent to a rent control activist, and was sued into submission under the Unruh Civil Rights Act, on the grounds that this was arbitrary discrimination.

I understsand the reasoning behind the laws prohibiting racial discrimination--as an attempt to make up for many decades of governments requiring racial discrimination. I also understand the common law concept of requiring innkeepers to serve all customers on an equal basis, and I can see how it provides a basis for antidiscrimination laws.

But there comes a certain point where common sense needs to play a role in this. I have T-shirts that I would not wear into leftist controlled sections of this country, such as my "Celebrate Diversity" shirt with pictures of a "diverse" set of handguns. This might be misinterpreted as racially derogatory, and of course, gun control activists tend to be somewhat irrational when they see even two-dimensional handguns. I would not think of wearing this out on the street in Los Angeles, and if I went into a restaurant, and they refused me service, I would be irked, but that's about all.

Professor Volokh thinks that I am suffering from "ACLU Derangement Syndrome." It is cases like this that expose the ACLU as a bunch of truly deranged people.
2.27.2006 11:17am
NickM (mail) (www):
California law gives obnoxious "customers" the power to destroy a business. I have eaten at Alpine Village several times (it's technically not within the city of Torrance, but bears a Torrance mailing address). If I thought the place were a neo-Nazi hangout, I would not go back there. I dare say most other people would feel the same way, and even a few regularly present neo-Nazis in full regalia would drive off most other customers.

Further, how do you square this duty to permit customer speech with Cal. Gov't Code § 12940, 42 USC § 2000e, EEOC implementing regulations, and case law interpreting both statutes? While a customer offended by a table of neo-Nazis is free to leave and never return, what about an employee? How would a black, Hispanic, Jewish, gay, or other employee belonging to a group historically targeted by the Nazis be free from a hostile work environment?


Nick
2.27.2006 2:28pm