2

Description of incident

The last paragraph is the one I'm interested in:

Walmart says the trespass notices issued to the couple prevent them from visiting any Walmart facility for at least one year.

I'm curious about this since it reads as though Walmart is banning the two people from entering the premises because of their political beliefs. A quick Google search indicates this is usually legal in the United States, but not always - in particular California, New York and the District of Columbia disallow such discrimination (this is admittedly not the exact same scenario since it deals with employment, but this source says the same thing about California). This seems to indicate that at least in these states, walmart cannot ban them from entering their stores.

However the second source above also says that "In general, refusal of service is justified in cases where a customer’s presence interferes with the safety and well-being of other patrons and the establishment itself", and clearly Walmart's other patrons disapproved of these two people. This seems to indicate that Walmart can ban them from entering their stores.

Question: if the two people in the incident go to California and attempt to enter a Walmart store, can Walmart legally prevent them from entering?

4

This is an open question.

California's Unruh Act prohibits discrimination in public accommodations on the basis of political affiliation.
This same issue has come up previously, in a case where four neo-Nazis showed up wearing swastika pins at a German restaurant. When they refused to remove the pins, the restaurant called the police to remove them.

The Nazis sued the restaurant under the Unruh Act, which prohibits various forms of discrimination in public accommodations (restaurants, hotels, etc.) Although the Unruh Act does not specifically mention discrimination on the basis of political ideology, the California Supreme Court has interpreted its list of classes as describing, not limiting, the classes eligible for protection, which it has also explicitly said include political affiliation:

Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination.

Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 726 (1982).

Based on these interpretations, the trial court refused to dismiss the Nazis' case against the restaurant, and the parties eventually settled without going to trial. Read commentary about the case here.

So it seems clear that the Unruh Act prohibits discrimination on the basis of political affiliation. Because wearing a swastika indicates that you affiliate with the National Socialist German Workers' Party or one of its offshoots, the Unruh Act probably prohibits a business from discriminating against customers on the basis of wearing a swastika.

But federal law may pre-empt the Unruh Act.
But the problem doesn't end there, because intepreting the law that was creates potential conflicts with federal public-accommodations law, employment law, and the First Amendment.

For instance, federal law prohibits the creation of a "hostile environment" in terms of both providing public accommodations on equal terms regardless of race, and in terms of equal employment opportunity regardless of race, color, religion, sex or national origin. Proving a hostile environment can be pretty difficult, but if you could demonstrate that allowing swastikas on premises created a hostile environment for customers or employees, you'd then have a strong Supremacy Clause argument that the Unruh Act can't be enforced to require the admission of swastika-wearing customers.

Beyond that, businesses have First Amendment rights on generally the same terms as natural humans. There's a reasonable argument to be made that those businesses, in banning swastikas, are communicating a First Amendment-protected anti-Nazi message, or that they are exercising their right to control who speaks in the forum that they control. If the court were to accept either of those arguments, it would again mean that the Unruh Act probably could not be enforced to benefit those wearing swastikas.

  • Could add, that the NSDAP is a party the federal government forbid in Germany (JCS 1067 6) – Trish Jul 27 '20 at 9:29
  • "Because wearing a swastika indicates that you affiliate with the National Socialist German Workers' Party" a reasonable person in California would have no idea such a party exists. – Greendrake Jul 27 '20 at 10:17
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    @Trish I'm not sure how that would change the analysis. – bdb484 Jul 27 '20 at 11:15
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    @Greendrake I think everyone with an eighth-grade education is familiar with Nazis, if not by that name. – bdb484 Jul 27 '20 at 11:17
  • Familiar with Nazis yes, not with the political party. Wearing a part of history on yourself does not make you making a political statement as far as Californians are concerned. – Greendrake Jul 27 '20 at 11:22
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The key question here is whether wearing swastika is expressing political beliefs.

If it is, then the couple belongs to a protected group under Californian law, and so Walmart cannot ban them.

But I pretty much doubt that any judge would hold that wearing swastika is expressing political beliefs. Because which ones? Swastika by itself does not convey anything. It just causes disturbance. People causing disturbance are not a protected group, therefore they can be banned.

  • I suspect, but don't know, that as the owner of the store, Walmart has greater authority to ban customers whose behavior/clothing/symbols cause distress to others, even if the behavior/clothing/symbols are expressing a political opinion. – DavidSupportsMonica Jul 27 '20 at 3:55
  • @DavidSupportsMonica I doubt that too. An exaggerated example but imagine a Walmart store full of white customers-racists who get distressed by one black customer. Same thing, just a different protected group. If that swastika was replaced by a clear political statement Walmart would have no authority to ban no matter how distressing that statement was. – Greendrake Jul 27 '20 at 4:11
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    The swastika is a symbol of a political party. The party is gross and racist and its member should throw themselves off a cliff, but wearing a political party's most recognizable symbol pretty obviously expresses political beliefs in alignment with the party's, no different than wearing a donkey or an elephant. – bdb484 Jul 27 '20 at 6:49
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    A party doesn't have to be legally registered in your jurisdiction for you to make a political statement supporting it. If that were the case, we could pretty effectively halt the promotion of new political parties by limiting people to supporting the ones that are already legally registered in the place they live. – bdb484 Jul 27 '20 at 8:57
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    @Greendrake That conclusion is not supported by law. – bdb484 Jul 27 '20 at 11:16

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