Image courtesy Ex-Muslims of North America. This message was printed on the t-shirts in question.
Jim, The Conservative Skeptic, and I have been debating as to whether a recent incident in which the Ex-Muslims of North America were asked to remove themselves from a Starbucks and Houston Hilton was lawful or a case of religious discrimination.
See Part 1 of our debate on religious discrimination and the Ex-Muslims of North America here:
FFRF Believes Denial of Service to Ex-Muslims at Starbucks/Hilton to be Civil Rights Violation
First, let me say I agree wholeheartedly with Jim (The Conservative Skeptic) that our goal here is not to spoil the reputation of a business or to presume nefarious intentions. That said, it is still an important issue that deserves a conversation.
Jim makes some valid points in his arguments that this may not actually be a case of religious discrimination in violation of the Civil Rights Act:
He writes:
“The hotel and Starbucks believed that these EXMNA members were protesting and desired to avoid any possible confrontation with the ISNA attendees. I don’t think that’s unreasonable.”
Also, “What constitutes a protest? A protest may be people marching down the street, peacefully, carrying signs, displaying banners, chanting slogans, or even sitting in a coffee bar silently wearing t-shirts that may cause offense to someone else.”
So, Jim’s point that a t-shirt message may be interpreted as a protest is reasonable. However, I’m going to double down on my contention that the t-shirts were not sufficient cause for expelling the group from the facility—only this time I am going to appeal to the First Amendment. Here’s why:
Starbucks/Hilton is classified as a public accommodation as I illustrated in Part 1 of my argument. The FFRF press release confirms my contention that they are legally defined as a public accommodation.
So, next I turned to the ACLU to research laws and protections for t-shirts that contain messaging. As I discovered, t-shirt messages are considered a form of speech (freedom of speech) as long as they are not obscene, threatening, lewd or vulgar.
But, there is a problem: there is a hazy area where a shirt may be perceived to cause a significant disruption or interfere with the rights of others. If there is a legitimate fear of a disruption, then censorship of it may be justified—otherwise, it is just mere censorship of an unpopular message and does violate free speech rights.
But, how do you prove there is about to be a disruption or hostile reaction? Did the facility receive a threat of violence if the shirts were not removed? Merely feeling offended or fearing the potential offense to others may not qualify without some factual evidence. At what point does fear of disruption become no more than the heckler’s veto in which those offended decided what speech may be heard or expressed?
Are other shirts with potentially unpopular messaging being scrutinized and turned away by the public accommodation? Let’s say someone comes into the facility with a t-shirt insulting President Trump (which has likely happened)? Was that person asked to leave because it might cause a disruption or hostile reaction? What about a shirt in support of LGBTQ rights (which is also likely to have happened)? Was that offensive and potentially disruptive to some, or is that free expression? How about an NRA or Second Amendment shirt?
What’s the difference between those instances and the “I’m an Ex-Muslim” message? Has prohibiting t-shirt messaging been applied consistently with other “controversial” messages? The burden of proof will fall on the public accommodation to justify silencing the right to passive expression of opinion, assuring us that they are not giving special favors to one side of the conversation.
Meanwhile, for your consideration, here’s The Conservative Skeptic’s new post doubling down on his side of the argument: