Investigating a Video Duplication Service for Not Duplicating Gay-Themed Films:

I think Dale's criticisms of the Arlington County Human Rights Commission actions is quite sound. (It's not clear from the news story whether the Commission actually ordered the business to duplicate the movies or pay for their duplication, or merely investigated it and "suggested" such a remedy; but I'll assume that their actions were attempts to use the law to coerce the businessman to duplicate the movies.)

To get to the question that Dale specifically reserves, though, it turns out that, given the Supreme Court's recent decision in Rumsfeld v. FAIR, such a coercive order would not have violated the business's First Amendment rights. It wouldn't have involved an unconstitutional speech compulsion, given the Court's reasoning, because the business's "own message [would not be] affected by the speech it was forced to [duplicate]." And it wouldn't have involved unconstitutional interference with the business owner's expressive association rights, because it "does not force a [business] 'to accept members it does not desire.'" Even if the business says that copying the video "impairs [its] own expression by requiring [it] to associate with the [message of the video]," "just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, so too a speaker cannot 'erect a shield' against laws requiring [service] 'simply by asserting' that mere association 'would impair its message.'"

Note that though the FAIR case involved a requirement attached as a condition to a government subsidy, the Court's decision in Rumsfeld v. FAIR held that such a requirement "could be constitutionally imposed directly," even by the government acting as sovereign rather than by the government acting as subsidizer. The precedent thus applies to all similar restrictions, not just as ones that are attached to a subsidy.

The one possible difference between this case and FAIR is that the FAIR decision did stress that it involved a Congressional act aimed at raising armies, which requires some "judicial deference." But the rest of the decision didn't rely on this, and instead applied -- and set a precedent about -- standard First Amendment law that's applicable even outside the context of military recruiting.

So, again, I agree with Dale's criticisms; but it's important to recognize that they are state-law-based and policy-based criticisms, and don't lead to the conclusion that the Commission's actions (even if coercive) violated the First Amendment.

Related Posts (on one page):

  1. Further Followup on "You Must Say That!":
  2. Investigating a Video Duplication Service for Not Duplicating Gay-Themed Films:
  3. You must say that! in Arlington County:
Houston Lawyer:
So you're saying that the Arlington County Human Rights Commission has the same powers in regulating speech that Congress has in raising an army?
5.4.2006 4:14pm
Josh Chandler:
Doesn't the fact that his objection was religious make this a potentially different case, though?

Of course, under Smith you don't get strict scrutiny if this is a facially neutral law, but I suspect that even a cursory digging into the facts of this case would show that this policy was not neutrally applied. Moreover, the context suggests that the business owner may have been "set up" in order to prove a political point.

Also, could you get strict scrutiny in spite of Smith on a "hybrid rights" theory, even if it was not entirely clear that the compelled speech claims are cognizable, as long as some kind of general freedom of speech concerns are implicated? It is difficult to tell, since the "hybrid rights" theory has not been well-developed, but arguably one need not show that the speech claim is by itself cognizable in order to invoke a hybrid rights theory-- after all, if that were required, what would be the point of the hybrid rights theory in the first place, since you could get all the relief you needed under the speech clause without invoking free exercise.

Just a thought.
5.4.2006 4:29pm
Hans Bader (mail):
I thnk the First Amendment argument is stronger than that.

Rumsfeld v. FAIR involved a prohibition against discriminating against a class of speakers (military recruiters), and thus, it could be said to be part of a general prohibition on discrimination even when it incidentally protected their speech.

But Arlington County's Human Rights Code only purports to be restricting discrimination against CUSTOMERS based on race, sex, religion, and sexual orientation, not on customers with a particular message.

What Arlington County has done is thus not incidental to the general prohibition on discrimination contained in its Code, but rather probably subject to heightened scrutiny. And the County lacks any legitimate interest in forcing one of many competing small businesses to disseminate a message that many competing businesses would be happy to disseminate voluntarily.

I do agree, on the other hand, that the state law problems with what the Arlington County Human Rights Commission are an even stronger basis for invalidating its actions.

Under Virginia's Dillon Rule, as interpreted by its judiciary, local governments are generally prevented from enforcing rules against discrimination not contained in state law.

And Virginia state law does not prohibit discrimination based on sexual orientation, much less discrimination based on one's message (i.e., a gay pride message).
5.4.2006 4:31pm
Although it's not a speech compulsion, wouldn't it violate freedom of the press? I don't know any case law, but this seems akin to forcing someone to publish material with which they disagree.
5.4.2006 4:43pm

They aren't publishing (disseminating) anything, they are "printing" it.
5.4.2006 5:23pm
Porkchop (mail):
It seems to me that there is actually very little, if any, "communicating" by the business owner. Video duplication is a commoditized service: It doesn't matter what the content is -- the reproduction process will be the same no matter what. The business owner is free to place his own logo on the duplicate product or not, as he chooses. If he does not do so, then no viewer or user will know that he had anything to do with the process.

This is more in the nature of his refusing to facilitate someone else's communication of a message that he disagrees with. I'm not really sure where that leaves us, though. I suppose he can argue that facilitating the communication of "pride" in sinful behavior is itself a promotion of that behavior and accordingly also sinful within his religious beliefs.

I think that the argument that this was discrimination based on sexual preference fails. Presumably he would have refused service to a straight gay-rights sympathizer, as well, based on the content of the message.

I do wonder what would have happened if he invited the high school kid from California to work in his shop and wear the "Shameful" t-shirt to work? Hostile environment for customers? Employees?
5.4.2006 5:30pm
Eh Nonymous (mail) (www):
What if the video they were being asked to reproduce involved pharmacists who object to dispensing contraception? And they were Zoroastrian pharmacists? Enrolling in the army? Would that change anything?

Probably not.
5.4.2006 5:32pm
Not argumentative, just an hoest question from a non-lawyer:

Could the Code force a video rental store owner to purchase and rent-out DVDs with messages that violate his religious viewpoints? Or force him to pay for such rentals at another store?

If not, where is the line drawn? What sort of behavior can be compelled? And why is this different from the duplicating example?

Any thoughts?
5.4.2006 5:32pm
5.4.2006 5:34pm
Eugene Volokh (www):
Josh Chandler, Hoosier: The question is whether the government is presumptively required to carve out an exemption for religious objectors from a generally applicable law, which is to say a law that applies equally to people without regard to their religiosity. (I have no reason to think that this law would be targeted only towards religious objectors. My guess is that the Human Relations Commission would be quite happy to interfere with the decisions of nonreligious objectors to homosexuality as well as with the decisions of religious objectors.)

In about half the states, the answer would be yes, either under the state courts' interpretation of the state constitution's religious freedom provision, or under a state-level Religious Freedom Restoration Act. (In those states, the government might still rebut the presumption that a religious accommodation is required, but it would have to show that applying the law evenhandedly is narrowly tailored to a compelling government interest -- a mushy standard, but one that might well come out in the objector's favor, for some of the reasons Dale mentions.) But Virginia isn't one of those states.

As to the "hybrid rights" argument, Smith does in theory leave that open, and some lower courts have taken up the invitation to create such a doctrine. But I doubt that it will ultimately amount to much. If the business owner's First Amendment compelled speech argument is a loser (not just questionable, but a loser), as I think it is under Rumsfeld v. FAIR, I doubt that courts would say that the Free Exercise Clause nonetheless makes it a winner on some "hybridization" rationale.
5.4.2006 5:45pm
The Drill SGT (mail):
As a general comment, Arlington County is likely the most liberal area in a moderately conservative state. For example, It went 67% for Kerry 33% for Bush in a state that went Bush 55, Kerry 45%.

Its county council is likely all democrats
5.4.2006 6:05pm
Hans Bader (mail):
Arlington does have an entirely Democratic county governing board, although there is a token independent on Arlington's school board.

The state judiciary previously blocked Arlington County from providing domestic partner benefits to county employees and from adopting affordable-housing mandates for private developers, citing Virginia's Dillon Rule, which restricts counties' ability to adopt regulations not specifically authorized by state law.

The Dillon Rule may apply here as well to bar what the County Human Rights Commission is doing.
5.4.2006 6:12pm
BobN (mail):
You can read Bono's policy on their website:

There is certain "potential" work out there that we will not accept. No content should embarrass our employees or tarnish our reputation. No pornography. No sexually explicit material. No content promoting violence or hate that runs counter to our Christian and ethical values. We will not debate the merits of your material if it crosses our line. If and when material is encountered that contains obscene, pornographic, "cult-ish," demonic, or senseless gratuitous violent scenes, all work will cease and the client will be responsible for all work that has been performed to-date on the project.

I don't see "no pro-gay content" in there...
5.4.2006 6:17pm
BobN (mail):
I'd hardly call Virginia "moderately conservative" when it comes to gay rights.
5.4.2006 6:18pm
Porkchop (mail):
Hans Bader,

I think that calling the School Board Chairman a "token independent" is a bit much. He managed to get elected with significant support from the community despite the opposition of the local Democratic establishment. He out-politicked the local establishment to get the endorsement of the local nominally "non-partisan" political group. He realizes that you can't get elected in Arlington County as a Republican. (And if you met some of the local Republicans, you'd understand why.)

As hard as it may be to believe, when I first moved to Arlington, the County Board was majority (if not completely) Republican. The candidates that the Republicans run are, frankly, pathetic as politicians. Democrats didn't take over the county, Republicans gave it to them in the early and mid-80's.
5.4.2006 6:24pm
Hans Bader (mail):
I wasn't insulting the school board chairman. When I called him "token" I meant that he was an isolated exception to one-party rule, not that he was not a good campaigner.

Obviously, any non-Democrat has to be an effective campaigner to get elected in a Democratic bastion like Arlington.

Once upon a time, that wasn't so. Arlington was once full of moderate Republicans. Richard Nixon carried Arlington three times -- once in 1960, when he lost to Kennedy nationally, and then in 1968 and 1972, when he was first elected and then re-elected president.
5.4.2006 6:36pm
John (mail):
Isn't this a seizure of the store owner's property for a public purpose (oops--make that use) without compensation?
5.4.2006 6:43pm
Porkchop (mail):

Arlington was once full of moderate Republicans.

Yes it was -- until the right wing of the party drove them out -- of the party, not the county. That, by the way is from personal experience -- once upon a time, I was a member of the Arlington County Republican Central Committee.
5.4.2006 6:53pm
Freder Frederson (mail):
Arlington was once full of moderate Republicans.

When I lived in Alexandria, I was certain I knew exactly where the south began--The Alexandria-Fairfax county line.

So from my house on South Alfred Street, I knew exactly how far I lived from the south, 3/4 of a mile.

Arlington and Alexandria are not in Virginia.
5.4.2006 9:03pm
Ken Arromdee:
I'm mostly libertarian, but antidiscrimination laws are one of the places I disagree with the libertarians.

The problem is that historically, people's refusal to serve certain classes of customers has been widespread enough that it had a significant impact on those customers' ability to obtain service at all. If one random diner out of 50 refused to serve blacks, it wouldn't be so bad, but that isn't what happened.

The usual libertarian objection to this is that in a free market, blacks will get served because their money is as good as everyone else's, but this ignores the fact that intangibles have market value. As long as people value all-white lunch counters, they won't let blacks in even if it makes them more money, if the intangible loss exceeds the monetary gain.

Bias against gays (and against gay-themed videos) is common--common enough that letting businesses refuse to provide service when gays are involved may lead to a noticeable decline in quality of life for gays. It's similar in this regard to making businesses serve blacks in restaurants.
5.4.2006 9:30pm
The Drill SGT (mail):
LOL Freder,

From my location south of you in Fairfax county, I still have a democratic Governor (no complaints yet, but it's still early) and a Democratic crook for a Congressman (Moran). I don't feel very far "South" here.
5.4.2006 9:31pm
DaSarge (mail):
The crux of Rumsfeld v FAIR was that the power to compel cooperation w/ recruiters derived from the Const specific grant of power to "provide and maintain a Navy" &"To raise and support Armies." Wouldn't the merchant's right to refrain from what he or she believes to be an immoral act be at least as important a right? The merchant may express his revulsion by refusing to copy the tapes, may he not? Does a gay person have a "right" to copy his tapes? Even if there are alternative vendors available?

My Con Law prof used to say "You have a right to speak &I have a right not to listen."
5.4.2006 9:49pm
Porkchop (mail):

Arlington and Alexandria are not in Virginia.

I wonder if that is because they were never part of the Confederacy?
5.4.2006 11:21pm
Tennessean (mail):
The Drill SGT - The South is rife with Democrats - from urban Louisiana to rural Tennessee, and all over besides. I'd hazard that many, many of Bush's Southern supporters vote regularly and consistently for Democrats at other, more local levels of government.
5.4.2006 11:48pm
eddie (mail):
I am struck by the dissonance of two things:

Why should a business entity be given any first amendment rights?

In what sense can a business entity "have" a religious belief?

The one of the greatest causes for the dilution of individual freedoms in this country has been the facile granting of "individual" rights to these "persons" call corporation, partnerships, limited liability companies, etc.
5.5.2006 11:56am
Harry Eagar (mail):
As a newspaperman, I don't see any room for debate here.

Consider: somebody submits an advertisement to my employer. He says, 'We don't print that.'

End of story, no?

He does not inquire into the offerer's religion, sex etc.

There may be a line between 'publishing' and 'copying,' but it's a very fine one and not one worth worrying about.

In this specific case, it was not clear if anyone holds a copyright on the tapes.

And I am not even clear whether the business would have known what was on the tape, unless the customer chose to volunteer the information. Does the clerk have to watch the whole film as it is being copied? I doubt it. Just slam it in the copying machine and punch a button.

I don't know about you lawyers, but we newspapermen have clean hands arguments. If somebody storms into a store shouting 'I'm a lesbian and I want you to copy my lesbian tapes' and then expects to get a story in the paper about being turned down, every city editor I've ever worked for would throw her out of the newsroom.
5.5.2006 5:55pm
Clayton E. Cramer (mail) (www):

The problem is that historically, people's refusal to serve certain classes of customers has been widespread enough that it had a significant impact on those customers' ability to obtain service at all. If one random diner out of 50 refused to serve blacks, it wouldn't be so bad, but that isn't what happened.

The usual libertarian objection to this is that in a free market, blacks will get served because their money is as good as everyone else's, but this ignores the fact that intangibles have market value. As long as people value all-white lunch counters, they won't let blacks in even if it makes them more money, if the intangible loss exceeds the monetary gain.
You are missing one detail here. The racial discrimination wasn't just because lots of whites were willing to do so; it is because governments actually required many businesses to discriminate against blacks. Read Plessy v. Ferguson (1896) and some of the bus and train cases from the twentieth century. There was no free market involved.

I don't find this argument quite as persuasive with respect to homosexuals or most other minority groups, because these other groups weren't enslaved. Hispanics, for example, were never targeted by state laws mandating segregation of public accommodations or schools. Texas built a whole law school for five black law students in the late 1940s--and yet I was startled as I looked through a friend's graduation announcement from the University of Texas in 1948 how many of the names were Hispanic.

There simply isn't the hostility to homosexuals in America today that blacks regularly experienced in 1940, or 1950, or even 1970. Unless you actively make a point of telling someone that you are a homosexual, or act in stereotypical ways, no one will know.

In any case, this store owner wasn't discriminating against a gay customer, but refusing to copy materials he found offensive. A straight customer bringing in the same video tape would have received the same refusal.
5.5.2006 7:35pm
Jon Rowe (mail) (www):

There simply isn't the hostility to homosexuals in America today that blacks regularly experienced in 1940, or 1950, or even 1970.

True. But homosexuals likewise regularly experienced terrible hostility in 1940, or 1950, or even 1970s. It's better for both groups today.

Blacks may have gotten it worst than any other group. But homosexuals could reasonably argue they've gotten it worse than any other group besides blacks and perhaps American Indians. Certainly worse than the aged or the disabled who, unlike gays, already receive civil rights protection at the federal level.

Unless you actively make a point of telling someone that you are a homosexual, or act in stereotypical ways, no one will know.

Many gays do "act in a stereotypical way" and can't help it. (Though many don't.) I don't think, for instance, Liberace, in his prime, wanted people to know he was gay. Certainly many of his blue haired old lady fans lived in an absolute state of denial about his sexuality. But I doubt he could hide it, even if he tried. Likewise with someone like Clay Aiken today.

Some sizeable percentage of homosexuals, even if it's a minority of them, have, through no fault of their own, a "no closet can hold me" trait about themselves.

We've all met them.
5.6.2006 12:58am
Harry Eagar (mail):
Clayton, those Hispanic names in the 1948 yearbook belonged to the old Mexican elite. Few, probably none, were from low status Mexican families.

You could see the same phenomenon in my father's Lucky Bags (the Naval Academy yearbook) in the early 1940s.

A similar phenomenon existed with Hawaiians. The population was much smaller, but dig me up the name of an Hawaiian holding the president's commission in 1941 (I knew a couple), and I will introduce you to a chiefly family.

People who lived in Texas or Hawaii would not have confused the two groups, even if the names seemed the same.
5.6.2006 1:37am