The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Bibliotechnical Athenaeum v. National Lawyers Guild, Inc., 2018 WL 1172597 (N.Y.Sup. Mar. 6, 2018), the National Lawyers Guild—a "progressive bar association"—held an awards banquet. For the banquet, the Guild printed a program, the Dinner Journal, which
consists of 40 pages. With the exception of a cover page, a two-page introduction, a program agenda, and seven pages of honoree biographies, the remaining 25-plus pages consist of advertisements. Most of the advertisements congratulate one or more of the honorees, some simply list the name and address of the advertiser without any accompanying message, and some contain what could be considered statements or messages referencing current and historic political issues….
The Athenaeum, an Israeli organization, tried to submit a 3″ x 3″, which was to read:
Congratulations to the Honorees
4 Shlomtzion St. Elazar
Gush Etzion 9094200
State of Israel
But the Guild e-mailed the Athenaeum to say that it would reject the ad because of the Guild's "resolution barring [Defendants] from accepting funds from Israeli organizations." The Athenaeum sued, claiming this constituted public accommodation discrimination based on national origin in violation of New York state and city law.
The court agreed that this violated the law. In an earlier decision in the same case, the court noted that the law defines "person" broadly, to include associations as well as individuals. And in this decision, the court held that
the phrase "public accommodation" [under the City and State Human Rights Laws] has been interpreted broadly since the statutes were first enacted, and … the annual dinner banquet fell squarely within its broad scope. Likewise, … the Guild's offer to advertise in the Dinner Journal was open to the public and … Defendants refused to accept the advertisement based only on Plaintiff's national origin. In fact, Defendants did not controvert Plaintiff's assertion that they refused the advertisement solely because Plaintiff was an Israeli corporation.
The court went on to refuse to dismiss the case on First Amendment grounds:
Defendants place much reliance on Miami Herald Publ'g Co. v Tornillo (1974), in which the Supreme Court struck down Florida's "right of reply" statute requiring newspapers to print a reply if a published article assailed a political candidate's record or character. Several courts have relied on Tornillo to dismiss lawsuits against newspapers that have refused to print advertisements…. [But] because Defendants were not traditional newspapers, this case appear[s] to fall outside Tornillo's scope….
[N]otwithstanding Tornillo, Defendants' actions may still be entitled to First Amendment protection since requiring Defendants to publish Plaintiff's advertisement might be considered compelled speech… Defendants argue that the Dinner Journal is more than just a phone-book style compilation of biographies and information, but rather a publication filled with assertions of political opinions. Defendants explain that the Dinner Journal highlights several of the honorees' work on behalf of Palestinians and shows that many of the advertisers supported this work. For example, the Arab American Action Network placed an advertisement "salut[ing] the NLG and [one of the honorees] for their incredible work defending the rights of Palestinians in Chicago." Similarly, one of the advertisements congratulates an honoree for "selflessly supporting … the struggle of the Palestinian people, and other anti-racist and anti-imperialist struggles." The Dinner Journal contains several other advertisements of this nature.
Set against this background, Defendants' counsel contends that "the proposed ad submitted by Plaintiff with its controversial Gush Etzion address expressed its own political message in gross contradiction of the view of the National Lawyers Guild." In other words, by listing Gush Etzion as Plaintiff's address, Defendants argue that the proposed advertisement contained "controversial" information which they were entitled to reject.
Defendants' arguments, however, must be rejected, as this court cannot, at least on this record, take judicial notice of the controversial nature of settlements in the West Bank….. [A] court may take judicial notice of facts that are capable of "immediate and accurate determination by resort to easily accessible sources of indisputable accuracy." Whether denoting an address as being in Israel is controversial or noncontroversial does not fall into that category. Quite to the contrary, the issue of Israeli settlements in the West Bank is the very epitome of a topic that cannot be reduced to "indisputable accuracy."
Moreover, Defendants' discussion about settlements appears for the first time in counsel's memorandum of law. It goes without saying that a recitation by counsel is patently insufficient for purposes of showing that Defendants' actions were based upon the Guild's political opinions as opposed to a discriminatory motive.
Turning now to the merits of the First Amendment argument, I find that it is not a sufficient basis to dismiss the complaint at this stage…. In assessing whether an individual is being improperly required to engage in forced speech or expressive conduct, the Supreme Court has held that the threshold inquiry is whether the conduct allegedly compelled was sufficiently expressive so as to trigger First Amendment protections. Conduct, in turn, is considered inherently expressive when there exists " '[a]n intent to convey a particularized message' " as well as a likelihood that the intended " 'message [will] be understood by those who view it.' "
Under those standards, I cannot say on the papers before me that the complaint must be dismissed. Without having the benefit of discovery, it is questionable whether the proposed advertisement is forced speech. The advertisement, which simply stated that Plaintiff congratulated the honorees at the dinner and listed an address, is not so different from many of the others appearing in the Dinner Journal. It is therefore questionable whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws. In other words, it is not clear from the complaint or documentary evidence that the speech in question triggers First Amendment protections.
It bears repeating that this is a motion to dismiss. The allegations contained in the amended complaint, namely that Plaintiff was discriminated against on the basis of its national origin, must be deemed true for purposes of this motion. The pleadings are supported by an email, purportedly written by the "NLG National Office," which unequivocally states that the advertisement was being rejected on the basis of Plaintiff's national origin. While the Dinner Journal circumstantially evinces Defendants' political affiliations, it does not totally undermine Plaintiff's allegations or the email in question so as to establish a complete documentary defense.
In sum, this case may eventually turn on the First Amendment, but the issues presented on this motion must first be borne out through discovery before the court can make that determination….
In an earlier decision, the court also reasoned that "the New York Court of Appeals has long recognized that free speech restrictions are consistent with the First Amendment where they serve to protect against discrimination":
In N.Y. State Club Ass'n v City of New York (1987), a consortium of some 125 private clubs, many of whom were allegedly organized along national origin, religious, ethnic and gender lines, challenged the New York City Human Rights Law as soon as it was enacted. The Association argued that the law violated its members' right to free speech and association under the First Amendment. In rejecting that argument, the Court drew a distinction between the clubs' general activities and the specific practice of discrimination—"The law evinces an intent not to dictate the selection policies or activities of the private clubs except to the extent necessary to ensure that they do not automatically exclude persons from membership or use of the facilities on account of invidious discrimination." The law also "employed the least restrictive means to achieve its ends" and "plaintiff has made no showing that its members' free speech rights will be abridged—either in altering the policies or functions of the various organizations … or in creating a chilling effect on the behavior of club members." More importantly, the Court held that "although plaintiff's constituent members have a right to free speech and to association, they lack the right to practice invidious discrimination … in the distribution of important business advantages and privileges…. Any incidental intrusion on protected free speech rights accomplished by the local measure is no greater than is necessary to fulfill the State's legitimate purpose …."
Yet the court's analysis strikes me as quite wrong. The Dinner Journal is a publication that is just as protected by the First Amendment as a newspaper. (The Supreme Court has long recognized that the freedom from compelled speech applies to all speakers, whether or not they are members of the institutional media.) The National Lawyers Guild has an absolute right to choose what not to publish in the Dinner Journal's pages; and whatever antidiscrimination law might say about clubs' decisions about whom to admit (see Roberts v. U.S. Jaycees (1983)), it can't limit speakers' decisions about what to include in their publications.
Nor does this extend just to speech that has been proved to be "controversial." It appears that the Guild refused the ad not because the address was in a West Bank settlement, but because the submitter was an Israeli organization. But that does not matter—the Guild is entitled to exclude Israeli speech and not just speech from Israeli settlements.
The one possible complication is that here the Guild's e-mail seemed to stress its objection to the identity of the advertiser and not just the content of the advertiser's message (the e-mail said the Guild would not "accept funds from Israeli organizations"). In this respect, the case is different from Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), whether the St. Patrick's Day Parade organizers refused to allow a group from parading under a banner saying "Irish American Gay, Lesbian and Bisexual Group of Boston," but apparently didn't seek to exclude gays and lesbians generally from marching under other banners. Yet just as in Dale v. Boy Scouts of America (2000) the Court allowed the Boy Scouts from excluding a would-be assistant scoutmaster because he was gay (even if he wasn't going to say any pro-gay messages as part of his speech to scouts on behalf of the organization), so the National Lawyers Guild has a right to exclude messages from Israeli organizations.
And it also doesn't matter "whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws." Indeed, in the leading modern compelled speech case, Wooley v. Maynard (1977), the Court held that drivers couldn't be required to display "Live Free or Die" on their license plates even though (as the Wooley dissent noted) passersby wouldn't perceive drivers as endorsing the motto (as opposed to merely displaying a government-issued license plate). People and organizations can't be required to display or print speech that they disapprove of, regardless of whether observers would perceive them as endorsing the speech.
Legally unfounded speech restrictions and compulsions such as this one should indeed be dismissed early in the process, such as on a motion to dismiss, rather than waiting for future development of legally irrelevant facts. As readers might gather, I agree with the National Lawyers Guild on very little, and I don't agree as a policy matter with its boycott of Israelis. But its First Amendment argument here was quite right, and should have prevailed.