AG Pam Bondi Says "We Can Prosecute You" for Refusing to Print Posters for Charlie Kirk Vigil

But there doesn't seem to be any federal law actually authorizing such prosecutions (or civil lawsuits).

The Hill (Ashleigh Fields) reports:

Attorney General Pam Bondi on Monday said the Justice Department was investigating an incident involving a Michigan Office Depot employee who refused to print flyers advertising a vigil for conservative activist Charlie Kirk…. Office Depot said last week they removed the employee responsible for denying the order placed by the Kalamazoo County Republican Party.

Here's the Bondi quote, from Hannity on Fox, starting about 4:42:

Businesses cannot discriminate. If you wanna go in and print posters with Charlie's pictures on them for a vigil, you have to let them do that. We can prosecute you for that. But I have Harmeet Dhillon right now in our Civil Rights unit looking at that immediately, that Office Depot had done that. We're looking at that.

But no federal law, to my knowledge, purports to ban stores from discriminating based on the political expression of the material they're asked to print.

Title II of the Civil Rights Act of 1964 bans discrimination by certain places of public accommodation—such as restaurants, hotels, theaters, and places of public amusement—based on race, religion, and national origin. But it doesn't ban discrimination based on political views, and it doesn't apply to retailers, so it wouldn't apply here. It also bans discrimination based on disability, but that's not applicable here either. Businesses can discriminate, just not on bases that the law forbids; and here, federal law doesn't appear to forbid this sort of discrimination.

Now some jurisdictions do ban political discrimination in places of public accommodation (see this article). If such a ban were applied to a print shop that deliberately refused to process an order based on its political content, then it might violate the First Amendment (see the concurrence in Lexington-Fayette Urban County Human Rights Comm'n v. Hands On Originals (Ky. 2019), a case in which Cato Institute and I filed an amicus brief making the First Amendment argument).

That First Amendment claim would be strengthened, of course, by 303 Creative LLC v. Elenis (2023), which recognized a First Amendment right not to create a website for same-sex weddings. It's conceivable that a court might limit the First Amendment defenses to small businesses where the owner would have to do the work personally; cf. Rumsfeld v. FAIR (2006), which upheld certain requirements that universities host certain speech, and distribute related speech, though perhaps the reasoning of 303 Creative would apply even to a large business such as Office Depot.

But none of that even arises here, because those jurisdictions are certain cities and counties, some territories, D.C., and perhaps a few states. None of those laws applies to the Office Depot involved in this incident; and even if there was such a law in Michigan or in the town of Portage (where the store was apparently located), it wouldn't be enforced by the U.S. Justice Department. Perhaps I'm missing something here, but it's hard to see a credible legal basis for AG Bondi's statements.

Comments

[thesafesurfer]

Looks like Pam and Eugene have a date in court.

[Josh R]

In this case, printing the flyers involved no customization. As such, it seems to me a law which required the printing of a third party's flyer (as opposed to a government's flyer) would not violate Office Depot's First Amendment rights.

Eugene doesn't see it that way, relying on Wooley whether the government or a third-party has been denied service. However, Eugene's compadre in 303 Creative, Dale Carpenter, believes customization is a key factor.

[AmosArch]

Im proud that (at least in the places so I visit) conservatives and rightwingers . Even the ones who like to brown nose Trump a bit too much are largely dumping on Bondi over this. Some of us say stupid things from time to time just like the other side I admit but the huge difference is on how the rest would end up reacting and ultimately following through specifically on this matter.

[Sarcastr0]

Even when the admin fucks up indefensibly, MAGA still wins for Amos, thanks to one of those counterfactual huge differences!

[AmosArch]

If a Dem AG started saying they were going to prosecute 'hate crimes' the people on the left would be much more supportive....since you know thats actually their thing? Do you deny this and claim the left as a group are against the concept of hate crimes?

[AmosArch]

hate speech...I mean, not that I'm much a fan of the hate crimes concept either.

[wvattorney13]

I typically support the Trump administration but Bondi is showing a real lack of knowledge here. I was also disappointed in Bongino when he went on Fox and claimed that if anyone knew about Robinson's plans to assassinate Kirk, but didn't tell anyone, that they would be prosecuted. That simply isn't the law.

[ReaderY]

Of course there’s a basis. It’s the same basis on which many people respond to bogus demand letters. Most people don’t personally know the law and can’t afford a lawyer to check. In addition, the historical credibility of the Attorney General’s office provides an additional basis. Because of this historical credibility it likely simply won’t occur to many people that the Attorney General is bluffing.

Just as there is no federal law requiring printers to print everything they are asked to, there is also no federal law requiring the Attorney General of the United States to tell the truth to the public about what the state of the law is.

The goal of this administration is to induce people to do what it wants them to do. A credible-sounding statement by an authority figure is often an excellent way to do that.

The late philosophy professor Harry G. Frankfurt, in his seminal work On Bullshit, defined bullshit as speech intended to persuade the listener without regard to its truth. The liar cares about the truth and attempts to hide it. But the bullshitter doesn’t care what the truth is, or whether the speech is true or false.

Bullshit, as Professor Frankfurt defined it, is the very currency of the current administration. Speech is judged utterly without regard to its truth, solely by its tendency to persuade listeners.

And this particular speech is very likely to be persuasive.. Attorney General Bondi is an excellent bullshitter. She has real talent for the art. Not as stellar a talent as the President himself. But real talent.

[steve sturm]

1, NAL, am I reading the post properly, in that there’s no federal law banning discrimination by a retailer on the basis of a (potential) customer’s race or sex?

2, it is sad that an AG either doesn’t know the law or does know the law and makes threats like these anyway.

[Eugene Volokh]

As to 1, that's right. The Civil Rights Act of 1964 doesn't ban sex discrimination in places of public accommodations at all, and bans discrimination based on race, religion, and national origin only in certain categories of places -- not including most retailers. Almost all states, however, do ban race and sex discrimination in places of public accommodation, and my sense is that the great bulk of them do indeed cover most retailers.