The First Amendment and the “Unique Evils” of Public Accommodations Discrimination

Abstract

Thirty-five years ago, in Roberts v. Jaycees, the Supreme Court instructed that “unique evils” inhered in discrimination in public commerce. In this essay, I then sketch the import of the unique evils of public accommodation discrimination for free speech. I argue that this arena manifests unified conventions. By inviting the general public, public accommodations generate expectations of service, expectations always realized by the in-group—often defined by race, religion, and gender—and sometimes denied to minorities. Unlike employment, housing, and other spheres of antidiscrimination, public accommodations operate according to accepted conventions of nonselectivity. The public expects businesses to deliver goods and services on a first-come, first-served basis, to charge the same prices, and to treat people with respect for their status as consumers.

I show that social expectations of public accommodations indicate an overlooked asymmetry in the communicative potential of service and denial. Because of the conventions of the public marketplace, a business communicates little, if anything, when it provides a good or service to any particular customer. It signals no approval of the person or the use of the goods by its service. By contrast, denial of service powerfully expresses that a person (or group) does not merit status as a consumer. The message conveyed by breaking uniform conventions of service does not depend on the artistic or bespoke nature of the product sold or the celebration of any particular event. Free speech claims built around denial of service cannot be so cabined. Instead, they risk the foundations of a consumer market that operates with an ideal of neutrality toward identity traits and aspires to frictionless transactions and movement.