How are Nazis and cake different?
August 17, 2017 11:34 PM   Subscribe

Help me to see what I'm missing in terms of the difference between banning Nazis from online places and same-sex couples being turned down by a baker.

It's kind of enjoyable to see GoDaddy and OKCupid banning Nazis and other white supremacists from using their services. Less hate speech on the Internet. But aren't these businesses supposed to take all comers regardless of their personal beliefs? If a baker can't turn away a same-sex couple wanting a cake for a wedding reception, how can a hosting company ban Nazis?

Let me be very clear: I know there is no moral equivalence between same-sex couples who want to celebrate their love and white supremacists who want to spew hatred. I'm strictly asking about the legal issue of companies serving the public.
posted by bryon to Law & Government (20 answers total) 4 users marked this as a favorite
having a sex or a sexual orientation isn't a personal belief.

espousing genocide isn't usually classed as a "personal belief." but supposing it were...being a woman and having a partner who is also a woman still isn't a personal belief. Where is the similarity?

there's not just no moral equivalence, as you say; there's no category equivalence. this is like asking why we can keep rabbits as pets but not marry our cars: what?
posted by queenofbithynia at 11:42 PM on August 17, 2017 [25 favorites]

If you want the "technical" reason they shut it down, I believe it was as stated in articles about these incidences--the Nazis violated their TOS. At least in GoDaddy's case, I found that their TOS states that "[You will not use this Site or Services in a manner that] promotes, encourages or engages in terrorism, violence against people, animals, or property". I don't know about OKCupid, but I imagine it wouldn't be hard to find language in their TOS that also justifies banning Nazis/white supremacists.
posted by sprezzy at 11:50 PM on August 17, 2017 [12 favorites]

Current laws in many places protect people from discrimination based on sexual orientation. Some courts have also chosen to take existing laws about sex discrimination and apply gender and sexual orientation to those clauses. Religion is explicitly protected in the Constitution.

Believing that feminists, Jews, PoC, queer people, etc. should be eliminated or deported is not a legally protected class. Since corporations are not governments, they are free to write Terms of Service that offer no protection to white supremacists.
posted by xyzzy at 11:53 PM on August 17, 2017 [26 favorites]

Companies don't have to take all customers; e.g., a baker doesn't have to bake a cake with swastika on it. Nazis threaten people, that's not protected speech, it isn't unlawful discrimination to refuse service to those who would use your products to threaten others.
posted by skewed at 11:55 PM on August 17, 2017 [7 favorites]

Restaurants, some bakeries, hotels etc count as places of public accommodation, with a higher legal requirement to take all comers. Note that refusing to serve a neo-nazi, not drawing a swastika on a cake, is what's analogous to the same sex wedding situation. Regardless, domain name registrars are under no such legal obligation.
posted by matildatakesovertheworld at 12:50 AM on August 18, 2017 [5 favorites]

Nazis want to kill people.
posted by Snarl Furillo at 12:51 AM on August 18, 2017 [10 favorites]

posted by blueberry at 1:02 AM on August 18, 2017 [33 favorites]

Some restaurants have signs that say "We reserve the right to refuse service to anyone." And they do have that right, except that they cannot discriminate against protected classes, which under federal law include race, color, national origin, religion, and disability, and, in some states, sexual orientation. But internet service providers don't even have that restriction, as far as I can tell.
posted by Vispa Teresa at 1:04 AM on August 18, 2017 [2 favorites]

Nazis want to kill people.


That's not what the OP was asking, just what are the legal rules that allow companies to refuse service.
posted by Vispa Teresa at 1:07 AM on August 18, 2017 [36 favorites]

Incitement to violence.
posted by moonlight on vermont at 1:15 AM on August 18, 2017 [8 favorites]

Also, businesses must protect their staff from harassment related to race, sex, etc. Baking a swastika cake or hosting a Nazi conference at one's hotel could have impact on staff.
posted by salvia at 1:15 AM on August 18, 2017 [2 favorites]

The idea of a "protected class" does all the work here. A baker can refuse to bake a cake, and a service provider can refuse to provide a service, on any ground except one that discriminates against a protected class. If I ask someone to bake me a cake celebrating libertarianism, or Buffy the Vampire Slayer, or the joy of having red hair, the baker is free to refuse because she hates redheads, Buffy fans, and libertarians. Since entrenched legal discrimination against individuals based on their having these characteristics has not really been a thing, the law doesn't have a compelling reason to curtail the baker's freedom to decide how to participate in the market, in order to correct such discrimination.

The same is true for people choosing to discriminate against Nazis. Nazi political beliefs are not a protected characteristic. Sexual orientation, like a handful of other traits that have been major vectors of discrimination--race, gender, religious belief or lack of belief--is. In other words, you're not talking about a special rule for Nazis, you're talking about a special rule for same sex couples. The question whether Nazis should be protected--i.e., whether political belief should become a protected characteristic--is a contested one in Europe, not least because our free speech laws are less absolute than yours and we have other ways of handling hate speech than by leaving it to private actors' personal taste. But I believe the protected class question has an easy answer in the US, at least under federal law. Holding a political belief doesn't make you a member of a protected class.
posted by Aravis76 at 2:31 AM on August 18, 2017 [52 favorites]

There's a "the ACLU shouldn't defend Nazis" conversation going on in my Facebook feed and I went to look for citations of National Socialist Party of America v. Village of Skokie (which, if people don't know, is the time the ACLU defended literal Nazis). It actually pops up when people want to deny queer people services or participation in something (Columbia has a website that lists the citations) because the free speech issue was around "symbolic speech" (i.e. swastikas) and the discrimination cases turn into arguments about whether, for example, flower-arranging is protected speech. Anyway, I haven't gone to read the opinions in the relevant cases, but I would expect the literal answer to your question to be there.
posted by hoyland at 4:58 AM on August 18, 2017

I read this article recently that really helped me get my head around that.

"Tolerance is not a moral precept; it is a peace treaty."
posted by gideonfrog at 5:48 AM on August 18, 2017 [2 favorites]

People ultimately choose their political beliefs. Also, political belief systems are literally about how to treat other people - they are never only your own business. Some political belief systems are so toxic so as to warrant ostracism. Ostracizing fascists is society's way of getting people to not choose fascism. (I would not hold it against a bakery if they did not want to make a communist cake, either.)

Sexual orientation, on the other hand, is not freely chosen, and moreover, it only concerns the people so romantically connected. Ostracizing same sex couples only interferes with their ability to enjoy life -
it cannot make them straight, and that's even assuming for sake of argument that society ought to care about how straight they were in the first place.
posted by Sticherbeast at 6:04 AM on August 18, 2017 [1 favorite]

Keep in mind that the reason there are stories about bakers refusing to accommodate gay weddings is that it isn't really settled, as gay people aren't a protected class in federal law. This story gives an overview of one particular case, and the relevant part is that state law specifically includes "sexual orientation" as a protected class, although the baker argues that it violates his religious freedom and that the state is effectively compelling him to express support or something for gay marriage, similar to compelling someone to recite the pledge of allegiance or something.

And less than half of US states have designated gay people as a protected class, so it is legal for businesses to refuse service to gay people in states where they're not explicitly protected. And since there are no states that include white supremacists as a protected class, they can't make the same arguments, and private businesses have the right to refuse them service. They could also refuse service to people who oppose Nazis if they wanted to.
posted by ernielundquist at 6:06 AM on August 18, 2017 [5 favorites]

Sorry, missed the fact that this was a legal question. "Holder of a political belief" is not a protected class in any state that I am aware of, let alone federally. Protected classes tend to be things that are fixed, either from birth as with race or national origin, or otherwise unchangeable, e.g. a veteran cannot retroactively become not-a-veteran, it is not so simple to tell somebody to convert from their religion, etc.

That said, it certainly seems like somebody who belongs to a racist religion might theoretically have some protection with regard to their religious symbols and practices, e.g. a member of the Church of the Creator. No idea how often that could get tested in the real world.
posted by Sticherbeast at 6:15 AM on August 18, 2017

Like Aravis76 and ernielundquist say, legally this hinges on protected classses. And LGBT people are protected classes in some states but not all. We have a legal right to order queer cake in some states. Which states? Here's info on which states protect LGBT for employment. Employment is not quite the right to queer cake, but the best proxy I could find.

The challenge with protected classes is conflict. Religion is also a protected class and one with an explicit basis in the Constitution itself. So when someone claims their religion prohibits them from making queer cake they are creating a conflict between two kinds of protected classes. Which brings us into unsettled law. I believe there are similar cases from the 1960s of religions refusing to treat Black people decently. One of the best-known cases, the Mormons, was solved by a revelation in 1978.

Having Nazi beliefs isn't generally a protected class. There are some employment protections for political affiliation: federal employment, California state law. My understanding is "political affiliation" in this case is like Republican or Democrat. Not clear it extends to Nazi, or to people who have the opinion Jews should be murdered.
posted by Nelson at 7:59 AM on August 18, 2017 [1 favorite]

You might find this discussion on the "Change My View" subreddit interesting
posted by Blasdelb at 9:11 AM on August 18, 2017 [1 favorite]

Some other related reading that may be interesting from the Electronic Frontier Foundation. While they acknowledge the legal -- First Amendment -- right of platforms to refuse to host specific types of speech, they also explain why they believe this is dangerous:

Fighting Neo-Nazis and the Future of Free Expression
posted by leticia at 6:11 PM on August 18, 2017 [1 favorite]

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