I'm not american, and this has stuck with me for some time.

Recently, Alex Jones was banned from a lot of platforms, most recently Twitter. I saw a lot of news about it, and my general understanding is that the companies are simply not providing their service to that individual, something they have complete right to do.

But also, there was that Colorado baker case, and there was a whole lot of discussion if he could or not deny service to the couple.

My question is how these two cases are different and how US law states if a company can or can't deny a service to someone.

up vote 2 down vote accepted

The key difference is the motivation for denying service.

Generally, a business can deny service for almost any reason, or for no reason, and doesn't have to explain its reasons for doing so.

However, laws may make it illegal to deny service for certain specific reasons. The federal Civil Rights Act of 1964 forbids discrimination on the basis of race, color, religion, sex, or national origin. So a business may not deny service for those specific reasons. In the Colorado case, there was a similar state law that also forbids discrimination on the basis of sexual orientation.

If they deny you service because of your political views, or the way you dress, or because they just plain don't like you as a person, that's legal. If they deny you service because of your sex, or race, or on the other bases in the Civil Rights Act, that's illegal.

Obviously, since a business doesn't have to say why they're denying service, or could lie about the reason, this could make it hard for a plaintiff to prove that denial was in fact based on (e.g.) race. They might be able to do so by finding out about internal discussions within the business, or by showing a pattern of denial to customers of a particular race.

In Masterpiece Cakeshop, the baker made it easy by explicitly stating that he was denying service because of the customers' sexual orientation, or at least because of the same-sex nature of the marriage in question. This would appear to violate the Colorado state law. Had he just said no without giving a reason, it would have been harder for the plaintiffs to make their case. (A state commission held that the baker did violate the law, but the US Supreme Court reversed because, they said, the commission had improperly taken the baker's religion into account.)

But there is no such law that forbids discrimination on the basis of political views, so Alex Jones can't make a similar case.

  • There are, in fact, many laws that forbid discrimination on the basis of political views, even in the private sector. – bdb484 Sep 13 at 19:48

In general, the government can limit what a business can do. That power is not unlimited, though, so the government's freedom to regulate is limited by constitutional rights, such as guaranteed by the First Amendment. If a government action limits a constitutional right, that action is subject to "strict scrutiny" under judicial review. The action must be justified by a compelling government interest, it must be narrowly tailored to meet that interest, and it must be the least restrictive way of meeting that interest.

In the earlier decision by SCOTUS, Masterpiece won a details-specific victory based on the finding that the Civil Rights Commission was hostile to the religious interest of the baker, so the larger issue of whether there has to be a First Amendment based exception to such discrimination laws has not been decided. In the more recent ruling, we could assume that the commission took heed of the lesson of the earlier case and applied the rule in a more neutral fashion. The court did hold that

The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in so me instances protected forms of expression... While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion

It is possible that SCOTUS will rule that there is indeed a religious exception to discrimination laws, but that is a matter for the future. The point is, the state has a compelling interest in preventing discrimination, and some such laws might pass strict scrutiny, so government actions like this may or may not be constitutional.

Twitter banned Alex Jones: Twitter is a private entity, not a government. Its actions are not subject to strict scrutiny, and unless a private action is prohibited by law, there is appeal to the First Amendment. That is, the First Amendment does not guarantee a right to a platform, it just guarantees a lack of government action once you have a platform. There might be considerations of discrimination law, if for example a person is banned for their religion or race. It is important to recognize, however, that there is no blanket ban on all forms of discrimination (deciding which store to shop at is a form of discrimination). In this instance, the gentleman was not discriminated against on the basis of some protected category – generally. In Seattle, political viewpoint is a protected category, but this only covers employment, housing, contracting with the city, and public accommodation. Moreover, Twitter alleges that the ban was based on specific prohibited behavior, not political ideology.

  • And just out of curiosity, are private companies forced to provide a reason, or can they just ban/negate the service? – Lucas Espindola Sep 13 at 17:49
  • They may have to provide a reason in court, if the banned party sues them, but generally they can just do it. – user6726 Sep 13 at 18:12
  • @LucasEspindola more precisely, perhaps, a court action wouldn't necessarily require them to provide a reason, but, assuming the court action is based on a claim of prohibited discrimination, require them to show that they did not use a prohibited reason. The easiest way to show that will often be to supply a different reason that is not prohibited. – phoog Sep 14 at 21:30

The United States has a patchwork of anti-discrimination laws, both at the state and federal levels.

Generally speaking, these laws are aimed at ensuring people can find places to live, work, and engage in commerce without regard to characteristics that they are born with (e.g., race, nationality, sex) and or choose (e.g. religion, political affiliation, marital status).

Not all anti-discrimination laws apply in all contexts, and the two you're talking about here are good examples.

Both Colorado (where Masterpiece is located) and California (where Twitter is located) have laws prohibiting discrimination on the basis of sexual orientation when providing "public accommodations," which includes selling cakes and might include hosting social media platforms.

But neither of those laws prohibits discrimination on the basis of political affiliation when providing public accommodations. It would be possible for Congress or a state to write a law that prohibits social media companies from discriminating based on political affiliation, but that law does not exist yet.

Until then, Twitter, Facebook, etc., are probably going to be generally free to drop users based on their politics.

In the US, there are a few things which are explicitly illegal to discriminate on. Religion and sexuality is one of them. Everything else, like political views, is fair game.

The obvious difference between the christian baker refusing to bake a wedding cake for a gay wedding (which at the time was also not legal) and a political/news commentator being banned from social media sites is that one involves protected classes (sexuality, religion) and the other does not. People like to bring up the first amendment for Alex Jones, but that applies to government activity. Private companies can censor whoever they want, legally speaking.

You could argue however that when a company holds a near-monopoly over a channel of communication, eg. microblogging, which has taken on a very significant role, it is unethical for it to frivolously censor or ban people. Even if it is not legally obligated to follow the first amendment, it should still do so because that is the right thing to do, one might say. This is why there is controversy. Moreover, companies like Twitter give the appearance of being neutral and pro-free speech, but themselves have a left-bias, and end up treating far left and far right commentators differently, which some see as hypocritical.

By the way, when SCOTUS ruled in favor of the bakery, it was actually because they felt the state court had incorrectly based their original decision against on the bakers' religion. So it may be more correct to say that the decision was to prevent Colorado state from forcing anyone to act against their religion, not to recognize religion as a pretext for another kind of discrimination. Presumably, if the Colorado court had been less aggressive, SCOTUS would have ruled against the bakers.

  • Your claim that Twitter is biased is unsupported. Do you have references, or is this a product of your own bias? These things can bet difficult to judge. – David Thornley Sep 14 at 20:48
  • Actually the bakery case was narrower than that; the court did not "prevent Colorado from forcing anyone to act against their religion." The court found that Colorado was itself discriminating on the basis of religion because it forced only some people to act against their religion. So the court decided that Colorado's discriminatory application of the law meant that they could overturn the decision below, in this one case, without ruling on the underlying legal questions. There's no precedent dictating the behavior of future bakers in Colorado with respect to same-sex weddings. – phoog Sep 14 at 21:39

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