May bookstores be required to carry books they don't want to distribute?
VOLOKH at law.ucla.edu
Thu Dec 17 14:57:55 PST 2009
I would think that bookstores must have a constitutional right to at least select which books they distribute, even if they do so based on the authors' race, religion, sex, and so on. Distribution of expression strikes me as pretty clearly speech, and compelling a bookstore to sell a book it doesn't want to sell seems to me an unconstitutional speech compulsion (just as barring it from selling a book would be an unconstitutional speech restriction). Or am I mistaken? Could a state, applying some broadly interpreted antidiscrimination law, bar bookstores from specializing in books by women, or by Christians, or by blacks, or for that matter from having separate shelves for each.
As to the choice of whom to sell to, that's a somewhat different matter; if it's articulated simply as a matter of expressive association, it might well be the case that requiring the bookstore to sell to certain people is not enough of a burden on its expressive association rights. But again, I'm not talking here about expressive association, but rather about speech compulsion.
From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Thursday, December 17, 2009 2:52 PM
To: Volokh, Eugene; CONLAWPROFS professors
Subject: RE: What about a singer?
And what about the "Skinhead Bookstore," which refuses to sell books to [you fill in the blanks], because to do so would be to force it to associate -- if only for the period the patrons are on the premises -- with members of groups they disfavor. And, not that the point isn't obvious, what about Lester Maddox and the Pickrick restaurant? Whats going on here is an (undefended) elision among categories, from something like "activities engaged in to make a living in the course of expressing one's own views" to something like "commercial, but in a way that seems sort of like a matter of personal expression" to something like "purely commercial in a way we're not willing to treat as expressive." I have to say that the categories are fluid enough that we ought to get a handle on at least one of them before moving to another. Proponents of the "attribution" view have offered one criterion, but it's not clear to me what proponents of the "it's all expression" view would use as a criterion to distinguish the Skinhead Bookstore.
William Nelson Cromwell Professor of Law
Harvard Law School
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile)
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 12/17/2009 3:12 PM
To: 'CONLAWPROFS professors'
Subject: RE: What about a singer?
It seems to me that if a wedding photographer, or a painter, or a cartoonist, wishes not to create a work, he should be free to do so. That's true if he's acting based on the race of the people whom the work would depict, or their sexes, or the religious ceremony being portrayed, or what have you. Why should it be otherwise? And it's not a matter of a right not to associate; it's a matter of a right not to create expression that you don't want to create.
Racial equality is not, it seems to me, the universal solvent of First Amendment rights. A church is free, for instance, to refuse to hire clergy based on race just as it's free to do so based on sex, sexual orientation, and more. Likewise, I take it that even the Boy Scouts dissenters would apply their view that "Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State's antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws" to race discrimination as well as sexual orientation discrimination, though they'd set the bar for the requisite showing of substantial burden higher than the majority. See, e.g., Invisible Empire of the Knights of the Ku Klux Klan v Mayor of Thurmont, 700 F. Supp. 281 (D. Md. 1988) (upholding the KKK's expressive association right to exclude nonwhites, as well as non-Christians, from its parade). Cf. In re Southgat!
e v. United African Movement, 1997 WL 1051933 (N.Y. Comm'n of Human Rts.) (concluding, in my view wrongly, that the United African Movement didn't have the constitutional right to exclude white audience members from the Pan-Africanist lectures that it put on).
Similarly, I take it that a movie producer would have the right to cast a black actor rather than a white one to play Nelson Mandela, and to cast a white one rather than a black one to play Bill Clinton. Likewise, notwithstanding the interpretation of 42 USC 1981 as banning race discrimination in all contracts (and the later ratification of this interpretation by Congress), the First Amendment would leave political organizations free to choose spokespeople based on their race, when they see it as necessary to conveying the message they want to the communities they want to reach.
> -----Original Message-----
> From: Eric Segall [mailto:esegall at gsu.edu]
> Sent: Thursday, December 17, 2009 12:00 PM
> To: Volokh, Eugene; 'CONLAWPROFS professors'
> Subject: RE: What about a singer?
> I apologize if this question has already been asked but Eugene can New Mexico
> require the wedding photographer to shoot a wedding between two African-
> Americans or two Jews if the photographer does not want to do so. If the answer
> to that question is yes, well then, that is probably the answer to this question,
> unless there is a federal right to not associate with gays but not a federal right to
> not associate with blacks or jews (or for that matter two secularists who want no
> religious message at their ceremony and that violates the religious tenets of the
> photographer). It might be coherent to distinguish these groups as a matter of
> federal constitutional law (Scalia might) but is that what you (Eugene) would do?
> Also for what it is worth, and I think I understand the prior doctrine, something
> about this case feels like the answer is NOT found in determining whether the
> photographer is being forced to express himself in ways he doesn't want to. I
> think the case involves some other kind of liberty, but I must admit I am not sure
> what it is.
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