Can Office Depot be forced to print flyers that it disapproves of?

|The Volokh Conspiracy |

An Office Depot store front is shown in Encinitas, California in this file photo from February 28, 2012. (REUTERS/ Mike Blake/Files)"
An Office Depot store in Encinitas, Calif. (Mike Blake/Reuters)

My post about the Hands On Originals friend-of-the-court brief reminded me about this incident from September:

1. Office Depot refused to print an anti-Planned-Parenthood flyer for a customer, citing its policy against printing "graphic material" ("which can include descriptions of dead or dismembered bodies") and "hate material" ("which advocates for the persecution of groups of people, regardless of the reason").

2. The Thomas More Society (a group with which I've worked before, and with which I agree on many issues, though not this one) complained to Office Depot, arguing that the company's actions was illegal religious discrimination by a place of public accommodation.

3. Office Depot originally defended its decision, arguing that its actions didn't discriminate because of the customer's religion but rather based on the content of her message; Office Depot would refuse to print such content regardless of the religiosity of the customer's religion, or of whether the content was couched in religious terms.

4. Office Depot then eventually backed down, and publicly apologized, stating that the flyer actually didn't violate its policy:

Upon a more detailed review, we have determined that the content of Ms. Goldstein's flyer is not a clear violation of the company's policy.

"We sincerely apologize to Ms. Goldstein for her experience and our initial reaction was not at all related to her religious beliefs. We invite her to return to Office Depot if she still wishes to print the flyer," said Roland Smith, chairman and chief executive officer, Office Depot.

Office Depot will continue to have policies that guide the refusal to reproduce material that is protected under copyright, contains graphic material or advocates the persecution of any groups of people, regardless of the reason. In addition, all customers are free to use the self-service copy machines in our stores without being subject to the policy.

5. My thinking: Office Depot's rejection of the flyer can certainly be criticized as intolerant and may have proved to be a bad business decision. But it didn't violate public accommodations laws, because it wasn't discrimination against the customer "because of … her … religion." Indeed, it wasn't even discrimination based on the religiosity of the message (though I don't think that the statute should be read as barring discrimination based on the religiosity of the message); Office Depot apparently would have treated the flyer the same way regardless of whether it was couched in religious or secular terms. Just to offer an analogy, say that someone wants to print a "Ban alcohol" flyer, and some hypothetical pro-alcohol-rights printer refuses to print it. That wouldn't constitute discrimination based on religion even if the customer's motivation for banning alcohol was religious (e.g., he was a Muslim, Mormon, or Methodist) or the text of the flyer offered religious arguments for banning alcohol. It's discrimination based on the anti-alcohol nature of the message, not the religious nature of the message.

6. And in any event, printers should have a First Amendment right to refuse to print messages that they disapprove of, regardless of the nature of the message. Just as the "individual freedom of mind" allows drivers to choose not to display on their cars a message that they disapprove of, see Wooley v. Maynard (1977), so it should allow printers to choose not to print a message that they disapprove of. For more on that, see the Hands On Originals post, which goes through that argument in detail.

(I should note that the First Amendment claim by Office Depot might be not as strong as Hands On Originals's, because Office Depot might be seen as such a large institution that requiring it to include such messages wouldn't unduly interfere with its owners' "freedom of mind," see the discussion of Rumsfeld v. FAIR and Wooley v. Maynard in the brief. But I still think that Office Depot should have a valid First Amendment freedom-from-compelled-speech defense, if some such public accommodation law does apply to its decisions about which flyers to print.)