What speech businesses / colleges / restaurants may engage in

[Leslie F Goldstein]

I agree that the First Amendment protects personal expression of belief to
the world at large (whether religious or not) from Govt restriction.  For
this reason I did nothing to restrain the colleague I wrote of.  If the
belief happens to be something like "I like you should be horsewhipped"
expressed in colorful enough language in a face-to-face context to be
likely to provoke a fight then I favor govt restraint under the fighting
wrods exemption, which I consider still good law and not reduced to the
equivalent of the c and p danger test.  I believe mine is a minority
opinion within the legal academy.  (not that I am within it, just that the
consensus seems to be that the fitin words exemption is dead.  I am
outside that consensus.)  Similarly a baker could post a sign saying "I
hate all Jews and wish it were lawful to shoot them on sight."  There are
versions of this said face-to-face that would in my view be punishable.
LFG

On Mon, 29 Nov 1999, Volokh, Eugene wrote:

>    The communicative impact of speech of course can violate laws; moreover,
> I have certainly agreed that in some situations applying those laws to
> restrict the speech is constitutional.  Contrary to Yvette's recent post,
> I'm not an absolutist.
>
>    Nonetheless, it seems to me important to keep such exceptions to free
> speech protection carefully defined and narrowly limited.  The reason for my
> concern is reflected precisely in the first half of Leslie's post and in
> this thread as a whole -- concessions that the government may restrict
> certain kinds of speech do generally lead to arguments that the government
> should be able to restrict still more speech.  After all, "you have already
> conceded that" speech may be restricted, so why not restrict another kind?
> This is not just idle speculation; I think it describes the way the world
> actually works, and we see it consistently from the 1910s cases to the
> restrictions on Communist advocacy to now the growing restriction on speech
> in the name of civil rights laws.
>
>     In my view, a sign that clearly expresses an intention to illegally
> refuse to do business with someone may be a form of commercial speech
> punishable under that exception to free speech protection.  (I say this
> hesitantly, partly because this isn't exactly commercial speech, since it
> expresses a refusal to engage in a commercial transaction rather than a
> proposal to engage in a commercial transaction, and partly because we see
> right here how this one concession can lead to broader and broader
> restrictions.)  But it hardly follows, I think, that the government can
> restrict a broad range of other speech simply because it makes people feel
> unwelcome, uneasy, or offended.  So long as there's no particular reason to
> think that the business will refuse to serve, educate, or employ people
> (e.g., as I think Sandy suggested, if the business makes clear that it
> intends to comply with the law despite its views), the commercial speech
> justification I describe would not deprive the speech of constitutional
> protection.
>
>    Leslie's question in the second paragraph is an interesting and complex
> one, as questions of morality and judgment related to speech tend to be.
> But Leslie, do you agree that the government acting as sovereign (setting
> aside its special role as employer, if this is a government-run school)
> ought not have any constitutional right to restrict your colleague from
> putting up such a poster, notwithstanding its possible effect on students
> who have to go to the professor's office during office hours?  Likewise,
> would you agree that (say) a bakery or a barbershop is constitutionally
> entitled to put up such a sign, regardless of any public accommodations
> statutes (under which the standard might not be "severe or pervasive" but
> rather whether there is any expression of preference or limitation)?
>
> -----Original Message-----
> From: Leslie Goldstein
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 11/28/99 11:39 AM
> Subject: Re: What speech businesses / colleges / restaurants may engage in
>
> I reply to Eugene's recent post:
> It does seem to me that you have(he has) already conceded that
> communicative impact of speech CAN be enough to violate laws, because,
> if memory serves, you conceded that a sign "Blacks not welcome here"
> attached next to a Help Wanted  sign could reasonably be construed as
> announcing an intent to discriminate in hiring, thereby strongly
> discouraging blacks from applying, and that such signs at least (if not
> ones about the anti-Christ and so on) do violate Title VII.
> I write this post, actually, to take us onto a reltaed tangent.  The
> clip that follows immediately here is from Eugene's post, aned I comment
> on it below.
> -------------------------------
>   But even if it doesn't create such a hostile environment, it does
> convey a message that the owner likes that religion and presumably
> people of that religion -- under Leslie's proposed analogy to the sign
> (here, it would be a sign saying, e.g., "Christians especially wanted
> here"), this would violate public accommodations law.  (By the way,
> enforcement agencies have on various occasions argued, I believe
> successfully, that including Christian symbols in advertisements
> violates antidiscrimination laws, as does including statements such as
> "near church" or "near synagogue" in ads offering housing for rent.)  Of
> course, the result would be even clearer as to antireligious speech
> ("Religion is the opium of the masses" / "The Pope is the Anti-Christ").
> --------------------------------------
> My (Leslie's comment) is this:
> Eugene's hypothetical about business owner's putting up their preferred
> version of religious paraphernalia reminded me of an actual incident on
> my (state university) campus. In an office a few doors from my own, a
> faculty member from the math department had posted a large sign on his
> own wall but clearly visible form the hall whenever his door was open,
> which was usually, something like "In Jesus lies Salvation."  I don't
> remember the exact words, but that was the gist.  Since I happen to be
> Jewish (as a matter of religion, not just ethnicity), the sign made me
> vaguely and slightly uncomfortable--I am not really sure why it did.
> Analytically, I told myself that I was glad that I was not a student who
> had to go see him for his office hours with that sign staring down at
> me.  I suppose I took the sign as having a proselytizing effect, and all
> proselytizing from another religion is an attack on one's own (much like
> the "one-to-many harassment" concept coined by Eugene).  Anyway, it
> never occurred to me to conceive of the sign as harassment (and I still
> do not) but I did wonder about speaking to the guy about its expressing
> a kind of insensitivity to the feelings of students of other religions.
> In the end I said nothing (until this post years later) because I could
> not figure out a tactful, non-antagonizing way to say something.  I
> wonder what was the right thing to do--I ask as a matter of good
> judgment in a liberal democracy, not as an example of con law, but I am
> curious what people attuned to con law issues believe about this
> situation.
> Leslie Goldstein
>
> E
>