Justice Thomas Highlights that in the Civil Rights Cases, Places of "Public Amusement" Were Not Traditional Common Carriers

Justice Thomas highlighted an under-appreciated aspect of Justice John Marshall Harlan's dissent

Justice Thomas concurred in the Court's denial of cert in Biden (formerly Trump) v. Knight First Amendment Institute. Eugene wrote a thorough analysis of Thomas's First Amendment arguments. (He is too modest to note that Justice Thomas cited his January post).

Here, I'd like to flag a fairly minor, but important discussion.

Thomas suggested that tech companies like Twitter should be treated like common carriers. And he reached back to a very important decision: Justice John Marshall Harlan's dissent in the Civil Rights Cases. Thomas wrote:

Second, governments have limited a company's right to exclude when that company is a public accommodation. This concept—related to common-carrier law—applies to companies that hold themselves out to the public but do not "carry" freight, passengers, or communications. See, e.g., Civil Rights Cases, 109 U. S. 3, 41–43 (1883) (Harlan, J., dissenting) (discussing places of public amusement).

Justice Harlan spent several pages discussing why places of public amusement, such as theaters, could still be regulated by the Civil Rights Act. Randy and I discuss this history in our 100 Cases book:

Justice John Marshall Harlan was the lone dissenter. He did not deny the textualist claim that only state action can violate the Fourteenth Amendment. Instead, Harlan contended that discrimination by the inns, hotels, and theaters, in fact, constituted state action. Under the common law, he wrote, so-called common carriers and inns were obligated to accept all paying customers from the general public. Because these businesses each had a monopoly, they had a common-law duty not to discriminate against potential customers. Justice Harlan admitted that so-called public amusements, such as theaters, were not traditionally treated like inns or common carriers. Nevertheless, theaters required a public license to operate, and the state governments who granted such licenses were servants of all the people. Justice Harlan concluded that Congress had the power to ensure that all citizens had access to these public spaces.

It is fitting that Justice Thomas is, once again, relying on the great dissenter.

Comments

[Brett Bellmore]

“Nevertheless, theaters required a public license to operate, and the state governments who granted such licenses were servants of all the people. Justice Harlan concluded that Congress had the power to ensure that all citizens had access to these public spaces.”

1) Take something people formerly could do without asking permission.
2) Force people to crawl to the government on their knees to do it.
3) They’re now “government actors”.

Step 2 bothers me somehow.

[Krayt]

How will you get kickbacks unless you force them to come to you for permission to earn a living?

The rest is cover story sophistry of noble patina running block for government working as designed. Evididence: the entire world and all human history.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It has always bothered me too, but I did find the logic here amusing. Witness the cake baker decorator who is now a common carrier!

There is no end to how government actors will expand the definition of government. Soon we shall all be government stooges, for lo! we walk in public on public sidewalks!

[MonitorsMost]

In the context of anti-discrimination laws, this is more or less moot based on statutory law. However, in the exceptions to the civil rights act, these questions of how much state regulation turns the action in question into “state action” arose quite frequently. Shelley v. Kraemer being one of the earliest (whether using a court to enforce private racially discriminatory covenants constitutes state action) and then Burton v. Wilmington Parking Authority (private tenant of public landlord with discriminatory practices violated Equal Protection Clause) and Moose Lodge No. 107 v. Irvis (private club maintaining a highly regulated liquor license was not enough to create state action).

[Dr. Ed 2]

Wasn’t there a case subsequent to _Moose Lodge No. 107 v. Irvis_ that upheld the right of the State of Maine to deny/revoke liquor licenses to private clubs *because* they discriminated?

[MonitorsMost]

Not that I know of but it certainly wouldn’t surprise me. The constitutional restraints on such revocation would seem to be pretty limited. Freedom of association would be weak.

Your best fact pattern would probably arise under some sort of equal protection case where the government revoked one protected class excluding club’s liquor license but not the liquor license of another protected class excluding club.

[Dr. Ed 2]

Brett, the untold story of government licensing is that its greatest supporters are those holding said licenses because as a barrier to entry, they drive up wages.

For example, one needs more hours of training to be a barber than to be a paramedic.

[David Nieporent]

Also, the untold story of World War II is that Germans were Nazis.

[tkamenick]

This is more than a little circular. Government forces you to serve everyone. Since you now serve everyone, government can force you to serve everyone.

[Ed Grinberg]

Are you speaking against civil rights?! Heretic! Burn him!!!

[Longtobefree]

“Justice Harlan concluded that Congress had the power to ensure that all citizens had access to these public spaces.”

(except Republicans)

[DaivdBehar]

Justice Thomas may be reading the comments of this blog. This subject has been repeatedly covered here for months.

[jst1]

The idea that the only Inn in town must take all comers is easy enough to understand. Are Twitter and Facebook the only Inns in town? Are their customers equivalent to hotel rooms that I must have access to?

[Dr. Ed 2]

“Are Twitter and Facebook the only Inns in town? “

Was the Heart of Atlanta the only motel in the City of Atlanta (which had a 1960 population of 487,455)?

I think that you will find that Twatter & Farcebook have a *far* larger share of their markets than the Heart of Atlanta did of theirs.

[Brian Thomas]

Yeah there are a number of ways this analogy doesn’t work. You touched on my initial thoughts too, so I’m going to put my rant here.

First, it’s premised on the idea that these businesses require certain business licenses to operate, and those licenses are granted through the state. I could be wrong, but I don’t think social media has any licensing requirements. Any such licensing requirements would open a whole new can of worms, which would be even bigger than this issue I think. But the link between “state action” and “private parties” is severed without that licensing requirement.

Second, it doesn’t say anything about subsequent denial of service for breaking the rules of the hotel/inn/theater. You may be given a room, but if you harass the other guests and trash the room, you can be banned from returning. If you disturb the performance of the theater, you can be kicked out.

Third, the business of the hotel or inn isn’t speech-based, whereas social media’s business is speech and that means speech created and distributed on or using their property can more easily be attributed to the company even if they were not the author. In that sense, social media companies likely have more free-speech rights than a hotel or other common carrier regarding who can access and use their property. Speech can potentially be linked back to the social media company itself and attributed to the company. For example, there is no legitimate theory of liability against a hotel which allows a customer who makes defamatory comments to stay at their hotel. If Bob Smith defamed John Doe while staying at ABC Hotel, John can’t sue ABC Hotel for Bob’s defamatory comments. However, there are legitimate liability concerns for a social media company which allows defamatory comments to remain hosted and posted on its website. If Bob Smith defames John Doe on Twitter, John Doe could very likely bring a defamation suit against both Bob Smith and Twitter. Forcing someone to host those statements they don’t believe in, to have those statements attributed to them against their will, and making them accept the liability for them, goes against everything the First Amendment stands for.

(And before anyone says theater is speech-based, there’s an obvious difference between being an audience member and being a performer. I don’t think I need to expand on that distinction.)

[jst1]

Thank you so much for the replies.
Dr. Ed,
A large market share does not negate the fact that there are other places to stay. Am I wrong here? There is no monopoly position.

Brian,
Your point about the ever-changing rules of engagement seem to relate to contracts more than it applies to a monopoly situation.
On point 3, do speech rights trump anti-trust law in the way you suggest? Renting a room doesn’t mean that I can hang any banner I wish from the window.
So I ask again, why must Twitter an Facebook take all comers (refrain from censorship)?

[Dr. Ed 2]

“discrimination by the inns, hotels, and theaters, in fact, constituted state action.”

There is a different aspect of this that is often overlooked — such discrimination was enforced by state action.

In other words, what would said inn, hotel, or theater do if they tried to remove someone and he/she/it said “FiretrUCK you, I’m not leaving”? They’d call the police — and that’s state action. Likewise when the invoke the power of the state to trespass unwanted persons, collect from those unwilling to pay, etc.

In part, I think this explains what I never understood about the lunch counter sit-ins — why they didn’t just call the police and have them hauled out, by force if necessary, and to jail. That definitely would have been state action, wouldn’t it have been?

So take Twatter & Farcebook — their decision to exclude someone constitutes state action in that it is enforced by state action — the Federal laws against computer hacking preclude me from invading their systems and posting my “hate” speech anyway. Otherwise — well, any system can be hacked and there’d be people selling malware that allowed one to become unbanned from Farcebook & Twatter.

Hence, I argue, the discrimination by the hotels, inns, and theaters constituted state action because it couldn’t exist WITHOUT state action — without state action to enforce it, BLM could do what they wanted to the business with impunity.

[ReaderY]

In my view, whether to extend the concept of common carrier to new trchnologies and venues is a political question for Congress, not a legal question for the courts.

I think the concept has merit. Communications networks, like transportation networks, are subject to network effects. Because they are more valuable the more people and entities connected to them, a single network that everyone can connect to is more efficient than a large number of disjointed, competing networks.

A single network could be achieved through standards, as occured with railroads (early railroads had different gauges) and also the Internet. But it could also be achieved with a regulated monopoly, as ocurred with telephones and to a lesser extent cable television franchises.

For this reason, I think thinking of social networks like Facebook as being similar to railroads, telephones, telegraphs, airplanes, cable TV, etc. makes a great deal of sense politically. Past transpottation and communication technologies have been subjected to common carrier obligations, and doing so here is just a matfer of political desire and will.

Because social networks like Facebook and Twitter represent interstate commerce even by a very narrrow and traditional definition, I think they are constitutionally more comparable to railroads and telegraphs than to theaters and amusement parks. For this reason, I don’t think revisiting the question of whether licensing amusement parks etc. turns them into state action adds any value.

I continue to think that Justice Thomas was simply sharing his personal recommendation that Congress should consider regulating social networks as common carriers, and not suggesting that the Constitution or federal common law requires this. Judges and Justices are entitled to occassionally recommend that Congress should comsider changing the law.

I would note that even if the status of social networks was once an open conmon-law question, Congress closed it in establishing internet companies’ obligations and liabilities in e.g. Section 230. I continue to think that federal courts should not rush to decide social policy questions, even when I agree with the Justices’ policy views. This is Congress’ business.

[emanate in my penumbra]

Im trying to grok a standard here. So one becomes a state actor if one’s business:
1) relies on a public license
2) and “holds itself out to the public”

Must the company have some sort of monopoly power as well?

[rsteinmetz]

I’m interested in the concept that in common law inns were required to accept all comers. Where does that come from?

That was clearly not the case in much of US history, where some inns (hotels) would only accept “the right sort of people” and some would not accept people with the wrong complexion or religion.

[jst1]

It comes from English law.
Richard Epstein talks about it in depth. The point being that the take all comers principle is an antidote to monopoly and only that. Otherwise, the principle of the freedom of associate should prevail.