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Taco John
05-27-2010, 12:59 AM
Some Strange Consequences of Public Accommodations Laws

David Bernstein • May 25, 2010 7:39 pm

All the discussion of Title II of the 1964 Civil Rights Act has obscured the fact that public accommodations laws, especially at the state and local level, have expanded way, way, beyond their original purpose of ensuring that previously excluded minorities are served in restaurants, hotels, and the like. This has happened more via aggressive judicial interpretation of the language of these laws than from the laws themselves, which were phrased to not infringe unduly on private behavior.

For example, the Boy Scouts of America v. Dale case involved the courts of New Jersey declaring that the membership policies of the Boy Scouts violated the state’s ban on discrimination in places of public accommodation. This even though the membership policies of the Boy Scouts are clearly not a “place,” the Boy Scouts of America is not an “accommodation” in the the usual sense of the word, and the membership policies of private organizations are not “public.” (Chapters 7 & 8 of my You Can’t Say That! book deal with the use and abuse of public accommodations laws. Since the book is now available used on Amazon for literally a penny, interested readers have little excuse not to buy it.)

Besides that, the decline of the principle that a business owner has at least some right to exclude what he deems undesireables has led to some very bizarre cases, none more so than the one described below, which a VC commenter alerted me to.

Here’s the story, from a VC post from 2006:

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.

How did a civil rights principle meant to aid African Americans and others who suffered grievous discrimination for generations come to protect the “right” of Neo-Nazis to parade their Nazi wardrobes in a privately owned restaurant against the wishes of management? The short answer is that legislation and its interpretation doesn’t develop from a coherent set of moral principles, but instead based on who is able to persuade the legislatures and the courts to adopt the principles they prefer. The principle involved in Alpine Village case appears to be hostility to the rights of private property owners, not “civil rights.”

http://volokh.com/2010/05/25/some-strange-consequences-of-public-accommodations-laws/

Taco John
05-27-2010, 01:04 AM
If precedent matters, these guys have $55 million dollars coming to them.

ClevelandBronco
05-27-2010, 02:24 AM
I think I just found a potentially lucrative hobby. I'd get my ass kicked out of a joint for $55 million. God knows I've done it plenty of times for free.

JohnnyV13
05-27-2010, 03:39 AM
If precedent matters, these guys have $55 million dollars coming to them.

Taco, you really don't understand the concept of precedent.

For one thing, as a technical matter, a legal case is not a precedent unil it is a reported case. That means a case that hits the appellate level AND the case must go to a decision. Here you mention a case that was settled at the trial level.

This distinction is significant because precedent is legally binding on all courts lower than the appellate court that renders the decision.

I know, however, that you mean precedent in a sort of street level way, that because the six secret service agents got 54 million, then the neo nazi's will.

No way.

The value in the Denny's litigation wasn't what they would have won at trial, but the publicity hit Denny's would have taken in the press. How much advertising would Denny's have had to run to overcome the image of discrimination againt people trained to take a bullet for the president? How much would such a campaign cost? Denny's executives decided 54 million was worth it.

With the Neo Nazi's, juries aren't going to give them jack shit. And, the publicity with respect to discriminating against neo nazi's isn't going to hurt the restaurant at all.

Amnorix
05-27-2010, 07:40 AM
Taco, you really don't understand the concept of precedent.

For one thing, as a technical matter, a legal case is not a precedent unil it is a reported case. That means a case that hits the appellate level AND the case must go to a decision. Here you mention a case that was settled at the trial level.

This distinction is significant because precedent is legally binding on all courts lower than the appellate court that renders the decision.

I know, however, that you mean precedent in a sort of street level way, that because the six secret service agents got 54 million, then the neo nazi's will.

No way.

The value in the Denny's litigation wasn't what they would have won at trial, but the publicity hit Denny's would have taken in the press. How much advertising would Denny's have had to run to overcome the image of discrimination againt people trained to take a bullet for the president? How much would such a campaign cost? Denny's executives decided 54 million was worth it.

With the Neo Nazi's, juries aren't going to give them jack shit. And, the publicity with respect to discriminating against neo nazi's isn't going to hurt the restaurant at all.

I only write to add one thing -- there is no such thing, really, as "precedent" for a damages award even fi the case does go all the way to trial. There are a number of elements that go into calculating damages in different situations, but damages is basically never calculated based on "someone got $X in a sorta similar situation in some other state, so these guys should get the same amoun there."

It just doesn't work that way when it comes to calculating damages, and given TJ's phrasing, which suggested that it might, I figured I'd clear that up as well.

ClevelandBronco
05-27-2010, 10:58 AM
Taco, you really don't understand the concept of precedent.

For one thing, as a technical matter, a legal case is not a precedent unil it is a reported case. That means a case that hits the appellate level AND the case must go to a decision. Here you mention a case that was settled at the trial level.

This distinction is significant because precedent is legally binding on all courts lower than the appellate court that renders the decision.

I know, however, that you mean precedent in a sort of street level way, that because the six secret service agents got 54 million, then the neo nazi's will.

No way.

The value in the Denny's litigation wasn't what they would have won at trial, but the publicity hit Denny's would have taken in the press. How much advertising would Denny's have had to run to overcome the image of discrimination againt people trained to take a bullet for the president? How much would such a campaign cost? Denny's executives decided 54 million was worth it.

With the Neo Nazi's, juries aren't going to give them jack shit. And, the publicity with respect to discriminating against neo nazi's isn't going to hurt the restaurant at all.

I only write to add one thing -- there is no such thing, really, as "precedent" for a damages award even fi the case does go all the way to trial. There are a number of elements that go into calculating damages in different situations, but damages is basically never calculated based on "someone got $X in a sorta similar situation in some other state, so these guys should get the same amoun there."

It just doesn't work that way when it comes to calculating damages, and given TJ's phrasing, which suggested that it might, I figured I'd clear that up as well.

Or maybe he was making a droll comment and no one except our resident legal minds really gives a shit.

orange
05-27-2010, 12:11 PM
"The short answer is that legislation and its interpretation doesn’t develop from a coherent set of moral principles, but instead based on who is able to persuade the legislatures and the courts to adopt the principles they prefer."

The case here seems to prove the exact opposite. The law was applied broadly even to a despised group. Just the way it's supposed to work.

FishingRod
05-27-2010, 12:32 PM
Elwood: Illinois Nazis.
Jake: I hate Illinois Nazis.

Garcia Bronco
05-27-2010, 12:37 PM
Elwood: Illinois Nazis.
Jake: I hate Illinois Nazis.

Quit stealing my stolen lines.

Brock
05-27-2010, 12:39 PM
According to the ACLU, I suppose then that guys walking in wearing T shirts that say I HATE N*****S can't be refused service.

FishingRod
05-27-2010, 12:43 PM
Quit stealing my stolen lines.

how about...

Lt. Aldo Raine: You probably heard we ain't in the prisoner-takin' business; we in the killin' Nazi business. And cousin, business is a-boomin'.

Taco John
05-27-2010, 12:55 PM
Arh-reeve-air-dair-chee!

FishingRod
05-27-2010, 01:31 PM
Arh-reeve-air-dair-chee!

LOL!

HC_Chief
05-27-2010, 01:47 PM
Arh-reeve-air-dair-chee!

Bahn-jurn-nah

healthpellets
05-27-2010, 01:53 PM
According to the ACLU, I suppose then that guys walking in wearing T shirts that say I HATE N*****S can't be refused service.

i dunno. maybe rand paul was on to something...

orange
05-27-2010, 02:03 PM
i dunno. maybe rand paul was on to something...

And maybe dredging up a four year old blog post - about a twentyfour year old case that set no precedent, was never upheld, never produced an opinion, never even went to trial - to try to prove that the big, bad government is sweeping away our freedoms shows how silly Libertarianism really is.

If Rand Paul hadn't already done that well enough on his own.

healthpellets
05-27-2010, 02:09 PM
And maybe dredging up a four year old blog post - about a twentyfour year old case that set no precedent, was never upheld, never produced an opinion, never even went to trial - to try to prove that the big, bad government is sweeping away our freedoms shows how silly Libertarianism really is.

If Rand Paul hadn't already done that well enough on his own.

i'm kind of confused about how and/or why you think Libertarianism is silly.

at one point, a business owner was free to run his business as he saw fit. now he cannot. so yes, government has taken away that freedom. is there really an argument there?

Frazod
05-27-2010, 02:13 PM
Hey, at least they weren't smoking. That would really be bad.

ClevelandBronco
05-27-2010, 02:15 PM
i'm kind of confused about how and/or why you think Libertarianism is silly.

at one point, a business owner was free to run his business as he saw fit. now he cannot. so yes, government has taken away that freedom. is there really an argument there?

Your confusion is understandable. You're looking for a position. They're offering a posture instead.

orange
05-27-2010, 02:29 PM
Here's a nice, simple position for you:


A government is instituted to provide for the general welfare of it's community.
Among the principles it holds is that all people are to be free and equal participants in the community.
That includes being free and equal participants in the marketplace.
Businesses which wish to operate in the community and benefit from the marketplace that the government provides must comply with the government's laws.

Libertarianism is silly because they don't seem to recognize the basic common sense and legally upheld fact that "freedom to partipate as equals in the marketplace" is in fact FREEDOM. And that the government has every right to weigh that FREEDOM versus the right of a business to discriminate and come down on one side.

But that's just one instance of Libertarianism silliness. They are basically silly by adhering to extremes in general. That's why their numbers are always down there with the Naders and LaRouches.

healthpellets
05-27-2010, 02:55 PM
Here's a nice, simple position for you:


A government is instituted to provide for the general welfare of it's community.
Among the principles it holds is that all people are to be free and equal participants in the community.
That includes being free and equal participants in the marketplace.
Businesses which wish to operate in the community and benefit from the marketplace that the government provides must comply with the government's laws.

Libertarianism is silly because they don't seem to recognize the basic common sense and legally upheld fact that "freedom to partipate as equals in the marketplace" is in fact FREEDOM. And that the government has every right to weigh that FREEDOM versus the right of a business to discriminate and come down on one side.

But that's just one instance of Libertarianism silliness. They are basically silly by adhering to extremes in general. That's why their numbers are always down there with the Naders and LaRouches.

ok. we'll go one by one and see if i understand.

1. governments are instituted for myriad of reasons in different situations. but yes, the welfare of the people is often one.

2. the government should not hold any principles. the government should be a framework in which to achieve goals or function as a community of states. lest we forget that this country was not founded on the ability of everyone to be "free and equal" participants in the community.

3. frankly none of us are equal participants in any marketplace. doesn't matter. nor should we be. everyone has his own economic situation. if i can afford a nicer car than my neighbor, i have more power in the marketplace. the bum i just gave a quarter to now has some power in the marketplace, but it's not nearly equal to mine.

3, cont. Now as this relates to the CRA, before the CRA was passed, jim crow laws were in effect, preventing white folks from serving black folks, etc. there goes the gubment getting all involved again. but let's say a black-owned barbershop only wanted to serve black folk. why? cause that's the only hair he knows how to cut. wtf is wrong with that? everyone is still an equal participant in the marketplace. some simply have restrictions on what they can do once they get to the marketplace.

4. well that's just stupid. a government is not created so that businesses must comply with it. the power of a government is not inherent in the government itself. the power of the gubment is given to it by the people. any power not ceeded to the gubment still remains with the people. but somehow, the gubment is the overarching altruistic being. bullshit.

i do find it amusing that you wish to claim freedom when discussing how someone might be offended or not provided an equal opportunity, but when discussing a business' ability to discriminate you call it a right. because i would call it a freedom to decide who you serve and who you do not.

libertarians that are on the fringe are silly. the ones that think neighborhoods should pave their own roads are silly, imo. but hold a position that the country would have been better off without the gubment regulating race relations is not a silly position. neither is a policy of non-intervention. neither is a policy of social security privatization. complete and total opposition to the Patriot Act, is not silly. believing that churches and charities could do a much better job than the gubment taking care of old people and sick people is not silly.

the complete disdain that the liberals have for the individual is appalling. just appalling. the belief that no one can fend for himself anymore and must be taken care of by the gubment seems to be an overarching theme to any political topic. and for the life of me, i can't understand it.

orange
05-27-2010, 03:04 PM
... but hold a position that the country would have been better off without the gubment regulating race relations is not a silly position.

Yes. Yes it is. It is a silly position by any reasonable measure.

Let's look at the evidence, shall we? 175 years before the Civil Rights Acts vs. 50 years since them. The position of minorities in America is night-and-day different. As I asked in my little thread - 175 years: when was the "free market" going to start fixing things? Or as banyon asked repeatedly, name an example where the "free market" has ever fixed discrimination.

healthpellets
05-27-2010, 03:08 PM
Yes. Yes it is. It is a silly position by any reasonable measure.

Let's look at the evidence, shall we? 175 years before the Civil Rights Acts vs. 50 years since them. The position of minorities in America is night-and-day different. As I asked in my little thread - 175 years: when was the "free market" going to start fixing things? Or as banyon asked repeatedly, name an example where the "free market" has ever fixed discrimination.

wouldn't it be much faster if you listed the times where the free market had the opportunity to do so but failed?

ok, so the CRA was an amazing success. now that it's all fixed, let's repeal it and see if everything just dissolves in to chaos. cool?

orange
05-27-2010, 03:09 PM
"But, but, Jim Crow laws. It was the gubment..."

Yes. That's why the NATIONAL government swept them aside. Because some things are better NOT being handled at the local level.

I would love to hear how exactly you "limited government" types - including Rand Paul - would have had the federal government sweep aside all those laws. Based on WHAT authority in the Constitution other than the Commerce Clause?

orange
05-27-2010, 03:10 PM
wouldn't it be much faster if you listed the times where the free market had the opportunity to do so but failed?

ok, so the CRA was an amazing success. now that it's all fixed, let's repeal it and see if everything just dissolves in to chaos. cool?

How about we recognize reality and leave it be. Cool?

orange
05-27-2010, 03:13 PM
wouldn't it be much faster if you listed the times where the free market had the opportunity to do so but failed?

What laws or business regulations in England created the Slave Trade in the first place?

And when was the Slave Trade ended? I seem to remember an act of government... after what, 300 years or so.

FishingRod
05-27-2010, 03:13 PM
Here's a nice, simple position for you:


A government is instituted to provide for the general welfare of it's community.
Among the principles it holds is that all people are to be free and equal participants in the community.
That includes being free and equal participants in the marketplace.
Businesses which wish to operate in the community and benefit from the marketplace that the government provides must comply with the government's laws.

Libertarianism is silly because they don't seem to recognize the basic common sense and legally upheld fact that "freedom to partipate as equals in the marketplace" is in fact FREEDOM. And that the government has every right to weigh that FREEDOM versus the right of a business to discriminate and come down on one side.

But that's just one instance of Libertarianism silliness. They are basically silly by adhering to extremes in general. That's why their numbers are always down there with the Naders and LaRouches.

The Libertarian party does have some ideas that are really a bit over simplified but the sad thing is they can't get a player on the field because the game has been rigged by both the Democratic and Republican parties whose main goal is to continue to fleece the American people. Both parties are joined at the hip in maintaining the status quo and buying the votes of their constituents. They have solidified their power through lies, bribes, manipulation and serving their party over their country and the results disgust me. Perhaps Libertarians are silly. Silly to believe that people deserve better than the pile of excrement they are constantly being served and not saying thank you may I have another. Silly with to follow a international policy closer to What George Washington envisioned that that of George Bush. Silly to believe that people are better off having the freedom to live their lives as they see fit instead of the government regulating our lives so that no one gets their feeling hurt. I think we could use more silliness.