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Friday, August 09, 2019

Money talks

People are calling for a boycott of Equinox in the wake of disclosure that owner Stephen Ross is hosting a Trump fundraiser. Expect more of this following the release by Texas Rep. Joaquin Castro of a list of Trump donors. Ross issued a nonsense statement that first tries to shame critics for, unlike him, "sit[ting] outside the process and criticiz[ing]." He then insists that he supports the President's economic policies (read: big tax cuts for him) while supporting racial equality and inclusion, and that he is not ashful about disagreeing with the President or about expressing his opinions (although he did not specify whether he expresses those contrary opinions to Trump--given what we know about Trump, I doubt it).

One issue we discussed during a SEALS panel on expressive conduct is how we handle the fact that consumers increasingly base their choices on their politics and conscience--avoiding businesses that support certain causes or that are owned by individuals who support certain causes. Contrary to Ross's statement, that is a form of direct engagement and support for (or opposition to) the things one deeply cares about (since we can't all put on million-dollar fundraisers).

But if buyers can express their political preferences through their consumer choices, why not sellers? Is it the difference in power, since the seller often is the only game in town? Is it because a seller's choices would look not like political preferences but like identity-based discrimination, which customers are allowed but businesses are not? We did not reach any great theoretical resolution on the panel. The question shows that it is not as simple as "this is a business transaction," because so much more is involved in both sides of that transaction.

Posted by Howard Wasserman on August 9, 2019 at 06:57 AM in First Amendment, Howard Wasserman | Permalink


Sellers are more restricted in refusing to sell than buyers who refuse to buy. The common law of public accomodation, and consumer protection statutes, as well as civil rights laws, apply to sellers and not to buyers. Probably more practically important is that every lost sale is lost profit to a seller, while a buyer can often find the identical product elsewhere without economic difference.

A recent publicized example is internet connector Couldflare's cutting off Chan8, apparently in the middle of a contract. Chan8 hadn't violated any existing policy of Cloudflare, since Cloudflare (unlike e.g. Facebook or Youtube) hadn't had any policies about hate speech. Cloudflare is probably legally vulnerable for breach of contract, and under state unfair trade paracice laws in states that extend these protections to businesses as well as consumers.


Masterpiece Cakeshop was also a seller that refused to sell.

Posted by: arthur | Aug 9, 2019 4:53:28 PM

Is it because a seller's choices would look not like political preferences but like identity-based discrimination?

Yes, when you don't sell to democrats you don't sell to 90% of blacks or homosexuals or muslims, which violates the 13th and 14th amendments.

That's why you can't outlaw democrat-district gerrymandering, is because you outlaw black-districts. And once you can't outlaw democrat-districts, you can't outlaw republican-districts.

Posted by: Duncan Starso | Aug 9, 2019 11:24:39 AM

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