It’s pretty much been shown that it’s a legally incorrect conclusion, as a matter of fact.
I’d guess in this case there will be the issue that Hands On had already agreed to produce the shirts and then withdrew from that agreement after finding out the nature of the event. That’s going to make it very difficult for Hands On to claim they wouldn’t have otherwise printed the shirts.
My guess is they want to make a point against discrimination. From a legal standpoint, they’d probably have a much stronger case arguing that the company voided a contract without sufficient cause. But they apparently chose to make this a discrimination issue.
Although book publishers rarely deal with an individual from the public without an agent, the existence of an agent representing a member of the general public does not minimize or negate the contact the company has with the general public. The company is still offering a service to members of the general public or soliciting patronage to people of the general public and the recommended course of interaction for this service is through an agent. The agent is still representing a member of the general public with the book publishing company and the book publishing company would still be and does publish books from members of the general public represented by an agent.
For example, the Random House excerpt provided by another poster on the first page is information to the general public suggesting to those of the general public seeking to having some manuscript or prose published by Random House to seek an agent and the agent communicates with Random House about publishing a prose or manuscript. This is soliciting patronage to the general public. Now, the publisher being selective in their service, even with those represented by an agent, is not the equivalent to not providing a service to the general public or soliciting patronage of the general public.
If the book publishers restricted book publishing to only those agents representing people from certain clubs and organizations then it would be accurate to say they do not provide any service to any member of the general public. However, they aren’t this restrictive in their selection.
It has not been shown to be a legally incorrect conclusion as a “matter of fact.”
Care to offer any rebuttal to post 51 yet? I was assuming you were ignoring it because there’s no logical way around it.
This is not a serious analysis of the circumstances. This is not how a public accommodation works and I suspect that you know it. A public accommodation is a business that is open to the public to come in and as a matter of course get the goods or services that the business offers for payment. That is nothing like what a publisher does. A publisher as a matter of routine does not let people walk in off the street and get something published upon payment. The publisher selects what it wants to pinkish, a ring minority of the material available to it and the transaction is conducted at the publisher’s behest, not the author’s. The publisher offers a contract and pays the author to surrender certain rights in the work. The entire business model is the opposite of a public accommodation. Under your reasoning all businesses are public accommodations, which entirely obliterates any legal significance to the term.
A curious sort of “patronage”, since Random House **pays **these “customers” to use its “services”. :rolleyes:
By your reasoning, a man looking to get a haircut must be a public accommodation, since he is soliciting members of the general public to avail themselves of the “service” he is offering: the opportunity to cut his hair! And not only does he not charge for the service he offers, he actually pays people for making use of it!
Fair enough. However the point that someone made that Hands On is more of a printer than a publisher seems relevant.
Wouldn’t you agree that when someone speaks he is the author of that speech, or at least selects the speech he is making? Hands On is not the author of the T-shirt, clearly, and in the normal course of business does not select the messages, except in the limited sense of refusing obscene ones. Now, if they had conditions of service that excluded gay messages they might have a leg to stand on, though that might be against anti-discrimination laws also.
Many years ago I had a summer job which partially involved me running the Xerox machine. Was I the author in any sense of the work I was copying? Was it my speech?
Random House is getting paid by the sale of the book of the author, just like the person cutting his hair pays the barber, so it is not as curious as you suggest.
And my argument is that you can’t exempt one without implicitly exempting the other. Just because an exception is not explicitly mentioned does not mean it doesn’t exist. Courts have found many times that the words of a law indicate a fundamental principle.
And, again, I say that there’s a difference between not printing a message because someone is gay and not printing a message because it’s going to be used in a gay pride rally. The only problem I see is moral–you shouldn’t go back on your word. Especially as a so-called Christian organization.
Then again, how can it be moral to use the pride rally to try and get a lower price, but then object when the price is raised instead?
You are intentionally conflating two different transactions. Random House is paying the author to acquire the necessary rights and is selling the book to the public. Random House is not offering services to the author. Your characterization of the transaction is flat wrong.
Your characterization of the transaction is flat wrong and you persist in ignoring the actual definition of a public accommodation, which is a commercial establishment which invites the general public to purchase services as a matter of routine. That is not what a publisher does.
Under the Civil Rights Act, for one specific example, this is the definition:
There isn’t a legally agreed upon or uniform meaning of public accommodation, as your posts suggests. The meaning of public accommodation will vary from jurisdiction. For example, the meaning of public accommodation in the federal Civil Rights Act is not the same as Kentucky’s definition of public accommodation. Kentucky’s meaning of public accommodation is not identical or the same to New Jersey’s public accomodation as defined by New Jersey statutes and New Jersey’s meaning of public accommodation is not identical to the federal Civil Rights Act.
So we can’t really proceed with the notion you present of some agreed upon or uniform meaning of public accommodation because, quite simply, it doesn’t exist. Jurisdictions define this phrase differently and the meaning of the phrase, its breadth, its scope, what is and isn’t covered, will be contingent upon the specific language used in the statute by some specific jursidiction.
Consider some of the laws below.
In order to be a public accommodation under the Act, an establishment (1) must affect commerce or (2) its discrimination must be supported by state action. The establishment must also fall within one of the following four categories:
(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, . . .
(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, . . .
(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment; and
(4) any establishment (A)(i) which is physically located within the premises of any establishment otherwise covered by this subsection, or (ii) within the premises of which is physically located any such covered establishment, and (B) which holds itself out as serving patrons of such covered establishment.19
These categories are further limited by the meaning of \commerce. within the section of the statute.20 Just Shoot Me, Public Accommodation Anti-Discrimination Laws Take Aim at First Amendment Freedom of Speech page 966. http://www.vanderbiltlawreview.org/content/articles/2011/04/Gottry-Just-Shoot-Me-64-Vand.-L.-Rev.-961-2011.pdf
Current state public accommodation laws have cast off their historical roots and embrace a wide range of business activity.23 New Jersey is a typical example, where ―public accommodation‖ includes—but is not limited to—more than fifty types of places.24 While some of the locations included are consistent with a traditional understanding of public accommodations, such as restaurants and public libraries, the list also includes places such as summer camps, shooting galleries, and roof gardens.25 Moreover, while traditional laws like the Civil Rights Act of 1964 cover establishments ―principally engaged‖ in selling food,26 the New Jersey statute covers ―any restaurant, eating house, or place where food is sold for consumption on the premises.‖27
This language conceivably allows businesses that only incidentally make food available for sale to be subject to the act. The law also has a catch-all provision, which encompasses ―any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind.‖28 In other words, a New Jersey business of any type, carrying on any activity, likely falls within the state‘s definition of a ―public accommodation.‖
Current laws also include a larger number of groups as protected classes. A District of Columbia statute covers not just discrimination based on race and color, but also ―religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, or place of residence or business of any Id. at 967.
Perhaps, but you can then blame the drafters of such legislation for the breadth of the law. As noted in this Vanderbilt Law Review article, states have so broadly defined public accommodation that it includes “summer camps, shooting, galleries, and roof gardens.” http://www.vanderbiltlawreview.org/content/articles/2011/04/Gottry-Just-Shoot-Me-64-Vand.-L.-Rev.-961-2011.pdf
Now, I understand how narrowly you construe “public accommodation” but whether your provinicial understanding of the phrase is accurate is not at all clear. What I do know is members of the public do get their prose and manuscripts published by book publishers, sometimes by use of an agent approaching the business with their idea and the company agreeing to publish their story or prose as a book. On other occasions, they perhaps approach a member of the public and ask them to write a prose to be published as a book. Either way, they are doing business with members of the public and while it is a select few members of the general public they are still doing business with some members of the general public.
I fail to see how they can do business with some members of the general public but not offer a service or patronage to the general public. I could be wrong.
I just addressed your idea of public accommodation in my last post. The fact is, there isn’t an “actual definition” of public accommodation in the sense of some uniform or widely agreed upon and shared meaning of the phrase. I am not sure what source you are invoking for defining public accommodation so narrowly but your insistence there is this meaning behind the phrase, and you have accurately presented it, is contestable. Especially since, as I just noted in my last post, jurisdictions define this phrase differently, essentially eviscerating your invoking of some “actual definition” of this phrase and subsequently applying it to the Kentucky law.
You don't seem to get the difference between publishing and printing, so let's stick to T-shirts. I own Doreen's T-shirt company. You or your agent come to me with a design. I like the design, and we make a deal. In return for the right to use your design, I will pay you $3 for every shirt I sell.The shirts will be produced under my label. You lay out no money- not for materials, not for the printing, not for the marketing. If I don't sell a single shirt , I lose money **but you don't.**. I am clearly speaking. The shirt is identified as being my product.
Let’s say instead I own “Custom T shirts and Truck Lettering by Doreen”. I advertising to the general public that I will produce custom t-shirts, banners, truck lettering etc. You bring me your design and we strike a deal - I will produce 100 T shirts for you at $10 each. You pay me $1000. If you don’t sell a single shirt, you lose money **but I don’t **. If I choose, the shirt may have a tag identifying my store , but no one will identify anything other than the printing itself as my product. I am not speaking any more than my typist is speaking when she types a letter for my signature, or the guy at Staples is speaking when he photocopies my flyer , or the printer is speaking when she prints my wedding invitation. In all of those case, the person who provides the actual words is speaking- not the person who prints or photocopies or types.
I agree there is a difference between refusing to print a message because of the sexual orientation of the speaker or source of the message and refusing to print the message because of the content of the message. The owner of Hands On Originals stated they objected to printing the message because of the content of the message, not the orientation of anyone, and if true, then they aren’t in violtation of at least the plain text of the statute.
I understand the difference between publishing and printing. In either case, speech is being created, whether by Hands On Originals when using machines it owns to print words on a t-shirt, or a publishing company of any kind using a machine to print words onto paper. Both are creating speech, assuming a message exists in what they have printed.
Furthermore, some of the cases I cited ostensibly disagree with your characterizatoin of who is speaking when it comes to printing a message onto some medium and they certainly do stand for the notion the person printing is speaking, regardless of the source of the message.
And here’s your problem right here - if the business is sufficiently selective , they are not doing business with the general public. That photographer mentioned in your link- if instead of offering her services to the general public , she only offered her services to those involved in ceremonies at St Lucy’s Catholic church, she wouldn’t have been a public accommodation. If a summer camp advertises itself as open only to Boy Scouts, it is not a public accommodation.
Whether this is correct will be contingent upon how broadly or narrowly the state law, or the law itself, defines public accommodation. If the law defines it broadly enough to include even the selectivity you mentioned above, as the New Jersey law is so broad as to do so, then it is a public accommodation.