As I mentioned below, the National Education Association -- basically an advocacy group and a labor union -- refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.
I argued below that the D.C. Office of Human Rights' reason for rejecting PFOX's claim -- that ex-gays aren't protected from sexual orientation discrimination by D.C. law -- was mistaken. But the NEA should still be entitled to act as it did, because of its Free Speech Clause rights.
The NEA excluded PFOX from a speech product that the NEA put together (the exhibitors at its conference), because it disapproved of PFOX's message. As Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston recognized, organizations that create such speech products have a constitutional right to control what speech they include and what they exclude. And that's true even if the speech product doesn't have a terribly coherent message. In Hurley, the Court protected the rights of the organizers of a St. Patrick's Day parade, though the parade consisted of a bunch of marching groups, floats, and banners, and the organizers had only very rarely excluded participants as unsuitable:
Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.
When an advocacy group such as the NEA puts together an exhibition -- even by soliciting people to participate, and to pay money for the privilege -- it is implicitly conveying the message that the exhibitions convey messages that are of value to the group's members, and that are broadly at least potentially sound (morally or politically). If the messages were primarily commercial advertising, especially of products that aren't themselves fully protected speech, the Hurley rule would not apply. But when someone is putting on an exhibition, whether of art or of education and advocacy, they have a First Amendment right to decide which speech to include and which to exclude.
Note that the NEA's being a specially federally chartered corporation doesn't strip it of this First Amendment right, just as the Boy Scouts' being a specially federally chartered corporation doesn't strip it of its First Amendment rights. Perhaps if the NEA got a subsidy from D.C., and D.C. could condition the subsidy on a decision not to discriminate in its events against certain classes of speakers (though that itself is not entirely clear). But D.C.'s antidiscrimination law isn't triggered by receipt of subsidies.
Finally, note that it's not clear whether D.C.'s public accommodation law should even be interpreted as applying to conference exhibitor choices, or for that matter to discrimination based on an exhibitor's sexual-orientation-related speech as opposed to the exhibitor's own sexual orientation. But even if it is interpreted this broadly (much like Massachusetts courts interpreted Massachusetts law this broadly in Hurley), the Free Speech Clause would protect the NEA's right to choose which speakers to allow into the exhibitions at its conferences.
Related Posts (on one page):
- The National Education Association's Right To Discriminate in Choice of Exhibitors at Its Convention:
- Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?