Can Anti-Discrimination Law Force A Private Company To Print A Message

Great Debates
1

http://www.glso.org/site/?cat=21

The link above is the GLSO’s version of events.

http://www.kentucky.com/2012/04/01/2134883/ky-voices-respect-my-right-to.html#storylink=misearch

The link above is the version of events from the business owner.

Essentially, the Pride Festival Committee of the Gay and Lesbian Services Organization contacted various t-shirt printing companies in the area and community, inquiring the costs to produce t-shirts for the 5th Annual Pride Festival in Lexington, Kentucky. The Pride Festival is an event celebrating the gay and lesbian lifestyle and they have also served as demonstrations for political and legal rights. The Pride Festival originated from gays and lesbians and other activists coalescing to protest a police raid in 1969 of the Stonewall Inn located in the Greenwich Village of New York City. The first protest was known as the Stonewall Riots. Pride Festivals are typically held in June to commemorate the Stonewall Riots.

A t-shirt printing company, by the name Hands On Originals, gave the lowest price quote to make the t-shirts. The committee intended to have Hands On Originals make the t-shirts for them. Subsequently, a committee member called Hands On Originals to inquire whether the price could be lowered. An employee at Hands On Originals inquired of the committee member who they had spoken to at the company about the original price quote and the committee member gave a name of “Blaine.” The committee member was then told they would have to speak with Blaine about a lower price.

After some missed phone calls the commitee member eventually spoke to Blaine, the company owner. Blaine inquired as to what GLSO was, their mission, and what they were promoting with the t-shirts. The committee member explained the t-shirts were for the Pride Festival and Blaine asked about the nature of the Pride Festival. The committee member explained the Pride Festival to Blaine and the t-shirt would be worn at the Pride Festival, and stylized with the number “5” and the name “Pride Festival” on the front of the t-shirt with sponsors on the back of the t-shirt.

Blaine then told the committee member they were a “Christian organization” and they would not print shirts promoting gay pride or the Pride Festival. The GLSO committee then decided to file a complaint with the Human Rights Commission of Lexington, Kentucky. The complaint alleges violation of a Lexington ordinance prohibiting discrimination by public accomodations on the basis of sexual orientation. The ordinance incorporates a Kentucky Statute prohibiting discrimination in public accommodations http://lrc.ky.gov/KRS/344-00/120.PDF and includes sexual orientation to the list and borrows the Kentucky statutory definition of public accommodation. http://lrc.ky.gov/KRS/344-00/130.PDF

Blaine’s actions, on behalf of the company, do not, in my opinion, violate the Lexington ordinance prohibition of discrimination in public accommodation on the basis of sexual orientation. Blaine made a decision to not print the the t-shirts on the basis of the content of the message, indeed the message itself, and not on the basis of the sexual orientation of GLSO or the individual inquiring about costs.

Assuming Blaine’s actions do implicate the Lexington ordinance, then the question is whether Hands On Originals has a constitutionally protected 1st Amendment free speech righ exception to the discrimination statute permitting them to refuse to create speech or create a message for a customer, when it disagrees with and does not want to create the speech or message.

This does involve speech. The phrase “Pride Festival” is speech conveying a message and the message is pride in being gay and lesbian. The speech can also be reasonably construed as presenting a message of legal and societal acceptance of the gay and lesbian lifestyle and of course the t-shirt would be used to express a message of promoting both messages.

Hands On Originals would be engaging in speech and expressive conduct, indeed speaking, by creating t-shirts with this speech and message on it, which is creating speech and creating speech is engaging in speech. Just as publishers, such as book publishers, newspapers, and magazines engage in speech and expressive conduct when they print words on paper bound together to make a book or print columns and reports of news and opinions (creating speech), similarly Hands On Originals would also be speaking when it creates speech by creating a t-shirt with the phrase on it.

I do not think any of those printers and publishers I mentioned above could be compelled, under an anti-discrimination statute, to be compelled to speak. For example, let’s use D.C.'s anti-discrimination in public accommodation on the basis of political affiliation, or a Seattle ordinance prohibiting public accommodation discrimination on the basis of political ideology, or a Madison, Wisconsin ordinance forbidding discrimination in public accommodation on the basis of political beliefs. Now, it seems to me it would be unconstitutional for these ordinances to compel a book publishing company to publish a book advocating and defending Nazism, or racist ideology. Similarly, I do not think the Lexington ordinance can compel this t-shirt company to speak.

After a cursory search this precise factual issue has not been addressed by the federal court of appeals or the U.S. Supreme Court. The U.S. Supreme Court has, however, recognized a 1st Amendment right of refusing to speak and not being compelled to speak by the government. West Virginia State Board of Education v. Barnette, 319 U.S. 624, (1943) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=319&invol=624,

Wooley v. Maynard, 430 U.S. 705 (1977), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0430_0705_ZS.html

Miami Herald Publishing Company v. Tornillo, 418 U.S. 241 (1974) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=418&invol=241

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) http://www.law.cornell.edu/supct/html/94-749.ZO.html

Pacific Gas & Electric Co. v. Public Utilities Comm’n of Cal, 475 U.S. 1 (1986). http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=475&invol=1

The Court, in Hurley, said the following, “*Since all speech inherently involves choices of what to say and what to leave unsaid,” Pacific Gas & Electric Co. v. Public Utilities Comm’n of Cal., 475 U.S. 1, 11 (1986) one important manifestation of the principle of free speech is that one who chooses to speak may also decide “what not to say,”… Although the State may at times “prescribe what shall be orthodox in commercial advertising” by requiring the dissemination of “purely factual and uncontroversial information,” outside that context it may not compel affirmance of a belief with which the speaker disagrees.

Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid. Nor is the rule’s benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers.* Citations omitted.

I think this language from the decision would allow Hands On Originals to refuse to print a t-shirt conveying a message it disagrees with and constitutionally protects such a decision under the 1st Amendment Free Speech Clause.

2

Did the shirts say, “Provided by Hands-On Originals, Who Endorse This Message?”

3

I do not know the answer to this question. However, let’s assume the phrase above does not appear on the t-shirt for the sake of, well, at least having some discussion on the issues.

4

Maybe I’m being dense, but doesn’t this excerpt

Only apply to public agencies, not private enterprises such as this company?

5

From the second link:

6

Thank you, in this case I think I agree with the OP that this particular statute conflicts with past court decisions.

7

My comment was intended to humorously highlight the fact that the compelled speech aspect of this is a little thin – that is, when the government compels a food manufacturer to list the ingredients in his corned beef hash, he’s making the food manufacturer speak – say something that appears to be from the manufacturer, even though the impetus and content come from the government.

Here, not so much. It’s true that the T-shirts convey a message. But it’s not true that the message seems to be coming from the T-shirt imprinter. The imprinter is unidentified; he is merely providing a service.

So the compelled speech claim is, I think, a little vitiated here.

8

I’m not a lawyer and don’t know a lot about discrimination law, but it sounds like discrimination to me, but it would help if we knew more about Hands On Originals and what orders they’ve done and refused to do in the past. Would they do the shirts if they didn’t say that they were for the Pride Festival but instead just had the logo or something on it and had the sponsors on the back? Would they do shirts for a gay organization that wasn’t directly pride related, like for the Lexington LGBT softball league or something like that? If they’ve done shirts (for example) for the Greek Festival or the First Methodist Fourth of July Festival, then they would you would have to wonder what makes the Pride Festival different, and it’s because of who is at the Pride Festival, which would make it sound like discrimination to me.

9

Discrimination is not my issue with this case. A business gave a quote … you stand by your quotes or you do not. Why should anyone do business who wins a bid that then backs out?

10

It seems to me that printing a shirt is not speech - wearing a shirt is (or, perhaps, printing a shirt with the name of the printer on it).

All the company is doing is choosing who to do business with. And state law compels them not to use sexual orientation when making that determination.

11

The requirement to print ingredients on packaged food is a public health and safety issue. The topic in this post is anti-discrimination law. To me, the case seems like a no brainer. A company decides to sell certain products. The idea that they are legally forced to sell a product that someone wants to buy, on the grounds that not selling that particular product would be discrimination, would lead to ridiculous results. It’s a shame that so-called civil rights law revolves less and less around protecting rights for everyone that are actually found in the Constitution and more and more around forcing everyone to obey certain special interest groups.

12

Does the printer have to be identified for compelled speech? In my opinion the answer is no.

13

This is the foundation of anti-discrimination law. Are you saying that you think that a company should be allowed to explicitly refuse to do business with black people or women?

They are not compelled to sell any product someone might want - they are merely required to provide the same products and services to all people regardless of their gender, race, etc. In this case the service is printing T-shirts.

If the group wanted shirts that said “Hands-On Originals supports gay marriage!” then they’d have a point. But doing business with someone isn’t speech, IMO. Letting someone march in your parade or print something under your masthead is.

14

No.

Hands On Originals is a retailer that sells apparel. Any person of any race, religion, gender, or sexual orientation may purchase any of the apparel that this retailer chooses to sell. However, it is not the case that any person may force this retailer to sell a product if the retailer chooses not to sell that product.

15

Service. They sell a product AND a service. They are choosing to refuse service to a group based on that group supporting gays.

If they would rather go out of business than provide service to the pride festival, so be it, they’re not slaves nobody will force them to work if they don’t want to. If they wish to be an ongoing concern, they are choosing to work, and don’t get to discriminate with their customers on the basis of sexual orientation.

16

Hm. I guess so. I do wonder where we draw this particular line when one of the products offered is customization. I’d assume you’d extend it to sign-makers and banner-makers as well? What about people that make trophies or plaques? Is it any written word or anything that conveys a message at all? What about people that draw caricatures - can they refuse to draw black people? How about photographers - can they refuse to offer their services to a same-sex couple?

I agree it’s not always cut-and-dry, and wouldn’t be outraged if Hands On’s decision is upheld. But we need to be a bit careful about defining business as speech.

17

I disagree here, I think doing business is a form of speech and that’s what makes this case interesting. I think that it’s clearly illegal if this group went in, asked for generic shirts, and they refused, then it would be discrimination, but a protected group doesn’t get carte blanche to have any shirt created they want under that idea. In this case, I’m not sure that it’s clear whether they’re refusing because the group supports gay rights or because the message they’re asking them to print supports gay rights.

If an individual who isn’t gay asked for the exact same message printed on a shirt and they refused to print it, would it still be considered discrimination? What if a protected group (gay related or not) asked for some message that the printer deemed offensive and they refused?

Here’s the problem I have. How could someone give a quote to a group called Gay and Lesbian Support Organization and then only refuse after learning the message on the shirt? I’m inclined the believe their objection isn’t with the customer but with the product they’re being asked to create. So I’d think it would be illegal to straight up turn down the group for creating any shirt but they can turn down a shirt promoting ideas they find offensive.

I don’t agree with their action here, but I’m not sure it’s something that is or should be covered by discrimination laws.

18

When the initial quote was given, was the design mentioned? I don’t know how block orders like this work, but it seems strange that a quote would be offered without enquiring as to the size and complexity of the design. It may be problematic for the company if they originally knew about the design and only changed their minds when they found out what/who it was actually for.

19

I’m sure the lunch counter owners in the Jim Crow South considered the presence of the wrong color offensive. If you are a public accommodation you don’t get to be able to reject for this reason - otherwise any anti-discrimination laws are worthless. If the customer were not in a protected class, I would guess they would be out of luck.
I’m sure that there are some messages from protected classes which would violate various obscenity laws, and they might have better luck rejecting those.

20

Are they a retailer that sells apparel, or are they a service provider that sells the service of printing on apparel? It would seem to me that they are the latter, since their business is printing whatever the customer wants on the apparel, not simply selling the apparel they come up with and create.