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Friday, May 16, 2014

First Amendment problem?

A New York City cab driver who was seen driving around wearing an armband with a Nazi swastika has had his license suspended for 30 days by the New York City Taxi and Limousine Commission. How does this not raise significant First Amendment problems?

The TLC is an agency of the New York City government. The driver, Gabriel Diaz, appears to be an independent contractor operating under a government license and not an employee of the city or the TLC. According to this report, the suspension was for violating § 54-12(e) of the regulations for medallion cab drivers, which prohibits commission of  "any act that is against the best interests of the public." But the act at issue--wearing the arm band--is unquestionably expressive. There is no indication he ever refused to transport anyone. Is the issue that the armband effectively dissuades people from getting in his cab? But is that enough to overcome his First Amendment interests? Isn't it on him if he chooses to forego income by presenting an unwelcoming vehicle? Or is there an analogy to a licensed attorney who has a Nazi flag in his office--"I'm willing to represent anyone who comes through the door, sorry if you don't want to retain me because of this flag"? How is this different than if he were listening to neo-Nazi radio programs in his cab?

There is a Travis Bickle joke to be made here. But in the meantime, please tell me what I am missing here.

Update: The ADL's public statement praising the suspension made the "message of exclusion" argument, stating that Diaz "sent a frightening and offensive message to New Yorkers about who might be welcome – and unwelcome – in the taxicab he was driving." And this story summarizes Diaz's political beliefs, sarcastically describing him as a "[c]harming fellow all around." But that does not change the role of the First Amendment in prohibiting government from stripping even a "charming fellow" of a business license solely because he holds and wishes to express those reprehensible views.

Posted by Howard Wasserman on May 16, 2014 at 11:00 PM in First Amendment, Howard Wasserman | Permalink


Agreed. The final link needs to be corrected.

Posted by: Joe | May 18, 2014 12:52:00 PM

[I'm sorry -- the link to the ADL statement]

Posted by: Joe | May 18, 2014 12:52:35 PM

I'd say he is offering a service involving public accommodation, and he cannot be overtly discriminatory in that way. Might be different if he were an engineer, or even a lawyer, but with a limited number of taxis, there is an interest in making sure they all are available to all.

Plus, the Nazi thing specifically might be important here. Like NAMBLA, but unlike the D or R party, or even the Communist party, there seems to be the implication of potential harmful action here and now. Therefore, the dissuasion, and the interference with transit, is more palpable.

Posted by: Jack | May 18, 2014 9:42:38 PM

But this goes to a point in the original post--how does the First Amendment speech in a public accommodation that gives an exclusionary message not accompanied by actual exclusion? So if a store displays a "whites only" sign but does not actually refuse anyone service, has it violated a P/A law? I do not know the answer to that.

Posted by: Howard Wasserman | May 18, 2014 10:18:34 PM

Whether or not the store has violated a P/A law by displaying a "whites only" sign, surely the state would be within its rights to prohibit such signs without running afoul of the First Amendment. It's a small step to say that this amounts to the same thing, and so this doesn't seem like a close or especially interesting constitutional question to me. Whether NYC's P/A law actually prohibits this conduct is another matter, but that's not a constitutional question.

Posted by: JG | May 20, 2014 10:20:06 PM

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