You must say that! in Arlington County:

Hans Bader reports that in Arlington County, Virginia, we're seeing another clash of competing "civil rights":

The Arlington County Human Rights Commission recently held a public hearing and subsequently investigated a Christian businessman on behalf of a gay-rights activist who claimed he wrongly "discriminated" based on "sexual orientation." Tim Bono of Bono Film and Video in Arlington County refused to duplicate two Gay Pride films for political activist Lillian Vincenz. (Vincenz once told an interviewer that "gay people .. are, in general, so much more courageous, innovative, and open to new ideas than the average straight person." . . . .

In refusing to duplicate the videos, Bono cited his desire to honor what he perceived as Biblical prohibitions against the sin of homosexual behavior. Bono Film & Video informs every potential customer that it does not duplicate material that it may deem obscene, or that may embarrass employees, tarnish its reputation, or that runs counter to the company's Christian and ethical values. . . .

Vincenz contacted Arlington County officials to get them to force Bono's private business to duplicate her materials, despite the fact that Bono objected on the basis of his religious convictions. The Arlington Human Rights Commission then ruled against Bono, ordering him to either duplicate Vincenz's films himself or pay someone else to do it for him.

See also a local newspaper account here.

I see three main problems with this ruling. First, while a county ordinance prohibits discrimination on the basis of sexual orientation in hiring and in the provision of "general public services," it is hardly obvious that the film shop has so discriminated. The shop refused to print a message it disagrees with; it did not refuse to do business with a person because of the person's sexual orientation. If a heterosexual had come to the shop requesting duplication of the same materials, I assume the shop owner would have denied the request.

Second, if the county ordinance is understood to require the business to duplicate the materials at issue, it is constitutionally vulnerable. (Note: I'm not arguing that the ordinance, interpreted in this way, would be held unconstitutional by a federal court. That's a different question than I will address here.) It seems to me that, even in the context of a commercial setting like a film shop, antidiscrimination laws that require a business owner to help others propound a message to which they object come very close to content-based, compelled speech; alternatively, it could be seen as requiring the owner to carry the speech of another, which the Supreme Court has found unconstitutional in some contexts. It's not the same as requiring Bono to recite aloud his support for the "gay agenda," as one might require a school-child to recite the Pledge, but it's just a few steps away from that. There are counter-arguments — and it has to be emphasized that this is a commercial setting, where courts have been more forgiving of speech regulation in the service of antidiscrimination law — but there's a plausible argument that the Arlington County ordinance would be unconstitutional as applied in this way.

Third, beyond these purely constitutional considerations, applying antidiscrimination law in this way is peculiarly bad policy because it harms free-speech values while doing little to advance core antidiscrimination values. In other cases where business owners want to discriminate (e.g., in employment), at least the connection to important and core antidiscrimination values is apparent. Here, the antidiscrimination law is actually operating to require the person to contribute to messages she dislikes. In contrast to the employment context, where I believe the antidiscrimination value is at its height and the "speech" interest is relatively lower, here the speech interest in refusing to facilitate objectionable messages is high, while the antidiscrimination value is relatively lower (if implicated at all). The antidiscrimination law, applied in this way, is really a speech regulation in a way that seems much more obvious and intuitive than in the employment context.

Imagine a principled application of a county ordinance that forbids discrimination in "services" on the basis of, say, "race, religion, and sexual orientation." Yes, the Christian film shop owner will have to copy the gay-rights documentaries. A victory for gay rights and equality, we might think. But the gay film shop owner will have to copy "God Hates Fags" posters for the fundamentalist minister protesting at the next funeral for a servicemember or a hate-crimes victim.

What makes the case even more compelling as an abuse of antidiscrimination law is that it's being applied to a mom-and-pop shop run by a small proprietor. We're not talking Kinko's here. So even if we worried that there might be some harm to speech values (e.g., the dissemination of unpopular ideas) if large printing companies refused to copy material on the basis of "moral" objections to its content, that concern is not present in this case.

Hard cases arise when business owners deny other kinds of services to people on the basis of some moral objection, as when the pharmacist working for a large national chain refuses to fill a prescription for contraceptives. I won't try to resolve those cases now. But the Arlington County case does not, to me, seem like a very hard one.

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:
Further Followup on "You Must Say That!":

Following up on Dale and Eugene's posts, below, on the Arlington Human Rights Commission investigating a business owner who refused to duplicate gay rights videos, I wanted to point out a few other, similar cases I noted in You Can't Say That! Some time agok, the Vermont chapter of the ACLU sued Catholic publisher Regal Arts Press for refusing a project from the abortion rights group Catholics for Free Choice. William A. Donohue, The Politics of the American Civil Liberties Union 131 (Transaction 1985). With the help of the ACLU, a plaintiff forced the Christian Yellow Pages, a publication created by and for evangelicals, to accept ads from non-born again Christians. Pines v. W.R. Tomson, 206 Cal. Rptr. 866 (Cal. App. 1984).

Most directly on point, up North, after Toronto print shop owner Scott Brockie refused on religious grounds to print letterhead for a gay activist group, the local human rights commission ordered him to pay the group $5,000 print the requested material, and apologize to the group's leaders. Brockie, who always accepted print jobs from individual gay customers, and even did pro bono work for a local AIDS group, is fighting the decision on religious freedom grounds. An appellate court has upheld the fine, though it did add that it would have ruled the other way had the material in question impinged more directly on Brockie's "core beliefs," such as a publication advocating homosexual behavior. Last I heard, another appeal was pending, with Brockie already having spent $100,000 Canadian in legal fees.