“Bans on Political Discrimination in Places of Public Accommodation and Housing”

You can find the new article in my newsletter. NYU Journal of Law & Liberty. Introduction

Private businesses are not allowed to discriminate against customers based on political activity in certain major cities or counties. Discrimination based on political activities (sometimes in real estate deals) is also prohibited in many of these jurisdictions. These bans may be narrow and protect the decision to support or belong to a particular political party. Other bans are more general and cover political advocacy in general, as well as on premises.

While I am not sure if these rules protect political affiliation and political speech in the same manner that anti-discrimination laws do, it is something I believe to be sound. They are constitutionally permitted in most situations. This is because property owners don’t generally have the First Amendment right of exclusion for speakers and speech, as well as given widespread acceptance of prohibitions against discrimination on the basis religion. It’s useful to have these rules in order to understand what options legislators chose regarding this issue, particularly when considering similar proposals. It is especially important given the potential interest in public accommodations law being used as a template for restricting social media platforms’ ability block users on the basis of their political views or speech.

This is also an excellent way to understand the implications and generality of certain interpretations of public accommodation laws. For example, let’s say that the courts decide that a photographer cannot refuse to photograph an identical-sex wedding held in a state that prohibits sexual orientation discrimination through public accommodations. In such a case, a photographer wouldn’t be allowed to photograph Nazi or Communist-themed events within a state that bans discrimination on the basis of political beliefs. This analogy has been drawn in part by briefs and opinions.

This is the list that I’ve found. It will be accompanied by an article from me on laws prohibiting employers from discriminating against political employees. These are arranged in an order that is narrowest to most broadest. However, it’s not a perfect list. The scope of many of these bans can be hard to define and others don’t fit on the same spectrum.