Recommended by Ricochet Members Created with Sketch. The Red Hen Incident Is a Perfect Place to Discuss Drawing the Important Lines

 

The Red Hen Incident, in which a peaceful Sarah Sanders was peacefully ejected from a privately owned restaurant that is open to the public, generated at least one thread each on the Main and Member Feeds. Soon, someone suggested that the Red Hen should be sued into oblivion, and excellent exchanges quickly ensued about the reach of anti-discrimination laws.

A strong but not universal consensus was soon reached (among those participating in that sub-thread) that the discriminatory action was disgusting and morally degraded, but almost certainly not unlawful or “actionable,” as lawyers say. The restaurant was no doubt a public accommodation, but the category of “working for Trump” or “being a Republican or a Democrat” is not a protected class.

So the remedy must be a private one rather than a legal one. Picket, write an op-ed, boycott (formally or informally), and see what shakes out in the market of ideas and in the market of dollars.

But what an opportunity to discuss what should be deemed to be a public accommodation, and what should be a protected class. You need Richard Epstein to do full justice to this (as he has many times), but here are several of my cents. (Spoiler alert: to avoid totalitarianism, there must be some or many areas of life where citizens have the liberty to engage in discriminatory conduct, free from coercive governmental action.)

First, it is best to distinguish among three categories of settings, not just two. We need the divide between public accommodations and purely private clubs and activities in order to protect the above liberty to discriminate in areas that are not (or must not) be the concern of the state. (I should be able to announce publicly that I will not date a black woman or rent out a single room in my full-time residence to a Catholic or a Jew, without the government coming down on my head. All of my friends or former friends are free to hate me and mock me, but not the state.)

When I am operating a common carrier, though, such as a bus company, an airline, a telephone company, or certain other natural monopolies, it is appropriate to correspondingly curtail my liberty even more. A common carrier cannot discriminate against any class of peaceable people who pay the tab and abide by generally applicable rules. This is a necessary trade-off because the answer “if you weigh over 250 pounds, go start your own airline,” or “if you stutter, go start your own phone company” is just not available.

But the toughie is which classes of persons should be protected in the middle zone of public accommodations, even given that the locus of the line between public and private is not self-evident. (An example I have used before: “should” my private law firm be permitted to announce that it will represent only women or only whites, on the ground that the client-lawyer relationship is sufficiently intimate to qualify as not a public accommodation?)

The line between protected and unprotected classes of people can in a very small number of cases be drawn on the basis of so-called “immutable characteristics,” such as race, gender (although some people dispute that), and ethnicity or country of origin (but not commonly associated religiosity).

For everything else, we are making a deliberate choice between the liberty to discriminate (which is part of autonomy) and the right not to be discriminated against. Should seriously fat people be able to enlist the awesome power of the state to force entry into a theatre or a restaurant or a swimming pool? Or should the person’s friends use public shaming of the discriminating establishment to blast open the doors?

Same with political outcasts (of one stripe or another). Should Sarah Sanders be allowed to sue, or is everyone’s liberty enhanced by requiring her to use some form of self-help (if she wants to)? She can go to other restaurants just as good, she can resort to public shaming through Twitter — using only her private account — or she can see if other people will begin their own campaign of moral suasion.

Me; I’m for as much liberty from state intervention as we can get, so I want to define public accommodation as narrowly as is reasonable, and limit the classes of protected persons as much as possible (even if it puts me into fewer protected categories). I’ve been fat and I’ve been thin(er), but I don’t want no stinking government going to bat for me if someone is rude and hurts my feelings.

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  1. katievs Member
    katievsJoined in the first year of Ricochet Ricochet Charter Member

    As I see it, this isn’t an issue for government and law, but for society and manners.

    I don’t want Sarah Sanders having a legal right to demand service because she’s part of a “protected class”.

    I want it to be unthinkable that a restaurant would refuse to serve someone because of his or her political views.

    • #1
    • June 25, 2018, at 3:21 AM PDT
    • 18 likes
  2. Muleskinner, Weasel Wrangler Member

    katievs (View Comment):
    As I see it, this isn’t an issue for government and law, but for society and manners.

    Or good economics. If I were the Red Hen’s banker, I wouldn’t like to hear that they are turning away paying customers for frivolous reasons. Or displaying bad manners in an attempt to drive away paying customers. Of course the owner should be free to do so, but I don’t want the bank regulators fining me if I decide that this woman is a bad risk because of her behavior.

    • #2
    • June 25, 2018, at 3:42 AM PDT
    • 3 likes
  3. Mendel Member
    MendelJoined in the first year of Ricochet Ricochet Charter Member

    This might be only tangential to the topic, but the issue I have the most difficulty with is the concept of “protected classes”.

    I respect that there was once a moral need to establish the concept of a protected class as a counterweight to both legally-sanctioned and publicly-tolerated discrimination against blacks. But it certainly seems like the basic notion of a protected class flies directly in the face of equal treatment under the law – after all, by definition people belonging to this class are treated differently.

    But regardless of whether there is a genuine legal basis for the existence of protected classes, the manner in which they are currently being expanded is nearly the perfect definition of a slippery slope. Each new group that is granted “protected” status is incrementally further from the original moral position of blacks in mid-century America, and moving more toward groups who are currently politically favorable and socially trendy. At some point, there will be little moral distinction between those who may legally be discriminated against and those who may not (and I know many here would argue we reached that point years ago).

    • #3
    • June 25, 2018, at 3:57 AM PDT
    • 19 likes
  4. Bryan G. Stephens Thatcher
    Bryan G. StephensJoined in the first year of Ricochet Ricochet Charter Member

    I don’t care about theory anymore, or slipperly slopes. Out here in the real world, Christians are told they must take part in they ceremonies find sinful. A Pizza Company who has one worker who is not in support of Gay Marriage is shut down by the leftist mob. Families of ICE workers are doxxed. There is only a leftist mob, and it is winning in its mission to shut down speech it does not like, to destroy jobs and lives, and it will keep doing so. 

    Either government needs to protect people being attacked by mobs, or there need to be counter mobs. The only other outcome is the leftist mob will win. 

    • #4
    • June 25, 2018, at 4:33 AM PDT
    • 21 likes
  5. Stina Member

    Muleskinner (View Comment):

    katievs (View Comment):
    As I see it, this isn’t an issue for government and law, but for society and manners.

    Or good economics. If I were the Red Hen’s banker, I wouldn’t like to hear that they are turning away paying customers for frivolous reasons. Or displaying bad manners in an attempt to drive away paying customers. Of course the owner should be free to do so, but I don’t want the bank regulators fining me if I decide that this woman is a bad risk because of her behavior.

    They won’t. But they will stop bank rolling gun retailers.

    • #5
    • June 25, 2018, at 4:41 AM PDT
    • 7 likes
  6. Miffed White Male Member
    Miffed White MaleJoined in the first year of Ricochet Ricochet Charter Member

    Bryan G. Stephens (View Comment):
    Either government needs to protect people being attacked by mobs, or there need to be counter mobs.

    This sums it up nicely.

    • #6
    • June 25, 2018, at 4:46 AM PDT
    • 6 likes
  7. Ekosj Member

    In an immigration thread here I believe I read that the U.N. classifies among “refugees” as those fleeing persecution for their political beliefs. Seems to me that Ms Sanders is s refugee by this definition and the Red Hen’s ownership is guilty of a human rights violation.

    • #7
    • June 25, 2018, at 4:58 AM PDT
    • 8 likes
  8. Ekosj Member

    The Left has become the new Brownshirts. This should be highlighted at every opportunity.

    • #8
    • June 25, 2018, at 5:04 AM PDT
    • 8 likes
  9. Doug Watt Moderator

    Sarah Sanders made the right to decision to leave the restaurant when she was asked to do so. Her use of her government provided social media account to name the restaurant presents an ethical problem, but it’s not a pivotal moment in the misuse of a government account. It’s a learning experience. What she described was certainly true, and the restaurant owner affirms her account of what happened.

    The positive affirmation of those who support the manager asking Sarah Sanders to leave affirms the right of a baker to refuse to provide a product that would involve him/her in the perception that it violates their religious beliefs to do so.

    There are of course those on the Left that will not see it this way, as there are those on the Right that will not see the correlation between the baker, restaurant owner, and the ejection of Sarah Sanders that way.

    You can try to litigate manners, but unfortunately the supply of virtue signalers’, and to be honest your run of the mill jerk is endless.

    I would not go back to a restaurant that was forced to serve me, food handlers have their own ways to get even. 

    • #9
    • June 25, 2018, at 6:42 AM PDT
    • 6 likes
  10. Unsk Member

    The problem, FormerLawProf, is that now those formerly thought to be in that protected class, may be discriminated against because of their political actions. Because of the Democratic Party’s long term agitation to treat citizens as a member of a group and not as a group of individuals , certain ethnic or quasi religious groups now have a distinct political bias, which under the RedHen approach leaves them open to lawful discrimination. 

    In the other feed, I brought up the example of gays. While sexual preference has not formerly been adopted by Congressional action to grant them status as a protected class, much of the Judiciary now treats it as so. 

    Gays as a group, with very little complaint from within the gay community, have used reprehensible actions to attack the religious liberty of their fellow citizens and have largely succeeded in restricting that liberty. Religious people are rightly angry regarding Gays political actions. Do not then do gays under the RedHen approach fall also under the class of a biased political constituency, not a protected class, that can be discriminated against almost for any reason?

    Because the Left now uses almost Gestapo like tactics to enforce strict obedience among those wanting to align with the Left, particularly among those groups like gays and blacks whom the Left thinks should always play the aggrieved victim in a very political way, the lines between protected classes and unprotected political classes have become horribly blurred, rendering enforcement of those discrimination laws a hoary nightmare. 

    • #10
    • June 25, 2018, at 7:31 AM PDT
    • 4 likes
  11. Valiuth Member
    ValiuthJoined in the first year of Ricochet Ricochet Charter Member

    Doug Watt (View Comment):
    I would not go back to a restaurant that was forced to serve me, food handlers have their own ways to get even. 

    Which is why I think actually asking someone to leave is more polite and dignified than spitting in their food in secret. It is ultimately healthier for people to be up front and honest about their refusal to associate with those whom they despise (whether justly or unjustly). You can’t make the Capulets and Montagues like each other and you shouldn’t feel obligated to try by force of law. As long as they are just mutually shunning each other and not spilling blood in the streets I think we can all be happy.

    • #11
    • June 25, 2018, at 7:37 AM PDT
    • 3 likes
  12. Valiuth Member
    ValiuthJoined in the first year of Ricochet Ricochet Charter Member

    Ekosj (View Comment):

    The Left has become the new Brownshirts. This should be highlighted at every opportunity.

    Ho, ho who is taking a leap off the old Nazi comparisons now? How long was it since people were arguing that the left had gone too far in doing this? Just so easy to do isn’t it? I know, I know this time its different, and they really are just that mean….

    • #12
    • June 25, 2018, at 7:40 AM PDT
    • Like
  13. Ekosj Member

    Valiuth (View Comment):

    Ekosj (View Comment):

    The Left has become the new Brownshirts. This should be highlighted at every opportunity.

    Ho, ho who is taking a leap off the old Nazi comparisons now? How long was it since people were arguing that the left had gone too far in doing this? Just so easy to do isn’t it? I know, I know this time its different, and they really are just that mean….

    If the armband fits…

    The actual Brownshirts’ purpose was to drive the opposition from the streets so that the only voices heard were those they favoured. To disrupt opposition meetings so that they could not organise or recruit. And to attack the leadership of opposing parties. Those are the tactics now on display … to hound opposition into silence. The comparison is apt.

    • #13
    • June 25, 2018, at 8:16 AM PDT
    • 10 likes
  14. Hoyacon Member

    In many instances, the concept behind the regulation of public accommodations is no longer viable. When the Civil Rights Act of 1964 was passed, we had segregation in significant parts of the country. The country itself was less developed, so it was possible for some businesses to exercise monopoly power (a rare event today). Moreover, the court of public opinion was not nearly as forceful, generations before the advent of social media.

    • #14
    • June 25, 2018, at 9:05 AM PDT
    • 2 likes
  15. Valiuth Member
    ValiuthJoined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):
    Moreover, the court of public opinion was not nearly as forceful, generations before the advent of social media.

    Was it actually less forceful or just more localized? 

    • #15
    • June 25, 2018, at 9:08 AM PDT
    • 2 likes
  16. Bob Thompson Member

    Unsk (View Comment):
    The problem, FormerLawProf, is that now those formerly thought to be in that protected class, may be discriminated against because of their political actions. Because of the Democratic Party’s long term agitation to treat citizens as a member of a group and not as a group of individuals , certain ethnic or quasi religious groups now have a distinct political bias, which under the RedHen approach leaves them open to lawful discrimination. 

    This. If one is allowed to discriminate against Republicans then it applies equally to Democrats.

    • #16
    • June 25, 2018, at 9:19 AM PDT
    • 1 like
  17. Hoyacon Member

    Valiuth (View Comment):

    Hoyacon (View Comment):
    Moreover, the court of public opinion was not nearly as forceful, generations before the advent of social media.

    Was it actually less forceful or just more localized?

    The latter is true, but the generators of public opinion–social media and 24 hour news–did not exist. So I’d say both.

     

     

    • #17
    • June 25, 2018, at 9:20 AM PDT
    • 2 likes
  18. Hypatia Inactive

    katievs (View Comment):

    As I see it, this isn’t an issue for government and law, but for society and manners.

    I don’t want Sarah Sanders having a legal right to demand service because she’s part of a “protected class”.

    I want it to be unthinkable that a restaurant would refuse to serve someone because of his or her political views.

    Right, and actually there’s a good argument to be made for it. Even at will. Employees can’t be fired for refusing to engage in political avtivity the owner directs. Violates public policy, not cuz being a member of a political party is a “protected class”, but because the important Right of freedom of speech and expression is implicated. 

    • #18
    • June 25, 2018, at 11:44 AM PDT
    • 2 likes
  19. Joshua Bissey Coolidge

    Valiuth (View Comment):
    You can’t make the Capulets and Montagues like each other and you shouldn’t feel obligated to try by force of law. As long as they are just mutually shunning each other and not spilling blood in the streets I think we can all be happy.

    I agree with this. Let leftists ban everyone they like from their private enterprises. Let the right ban who they like. We’ll see which side is more driven by fear and hatred.

    In the meantime, maybe Starbucks can give the Red Hen some pointers on inclusion. They could close the store for a day…

    • #19
    • June 25, 2018, at 11:57 AM PDT
    • 1 like
  20. RushBabe49 Thatcher

    Just this weekend, I saw in a restaurant this sign:

    We Reserve the Right To Refuse Service to Anyone

    How would any state with an anti-discrimination statute allow any public accommodation to post that sign? Isn’t that sign illegal, and wouldn’t the owners of the establishment be open to lawsuits?

    • #20
    • June 25, 2018, at 11:58 AM PDT
    • Like
  21. Valiuth Member
    ValiuthJoined in the first year of Ricochet Ricochet Charter Member

    Hoyacon (View Comment):

    Valiuth (View Comment):

    Hoyacon (View Comment):
    Moreover, the court of public opinion was not nearly as forceful, generations before the advent of social media.

    Was it actually less forceful or just more localized?

    The latter is true, but the generators of public opinion–social media and 24 hour news–did not exist. So I’d say both.

     

    Of course this is not something we can measure. I think the benefit of the past is that because it was more localized you could escape it more easily by moving. Now social disapproval will follow you forever on the internet, and can be googled. 

     

    • #21
    • June 25, 2018, at 11:59 AM PDT
    • 1 like
  22. Stad Coolidge

    formerlawprof: I’ve been fat and I’ve been thin(er), but I don’t want no stinking government going to bat for me if someone is rude and hurts my feelings.

    I agree with this view, but I still have serious reservations about the legality of Sarah and her party’s ejection from the restaurant, a public accommodation.

    Religion is a belief system, and the anti-discrimination laws make it protected. However, is not having a political party affiliation also a belief system? True, the Republican party or conservatism don’t have churches or a Pope they can point to, but I believe in conservatism, and I would be greatly offended and seek legal redress if a restaurant owner overheard me talking about how much I like Trump over dinner, then throwing me out.

    Hypothetical examples:

    “I didn’t throw the Muslim family out of my restaurant because they were Muslim. I threw them out because I overheard them saying “Death to America.”

    “I don’t mind serving a gay couple, but the sight of two gay men holding hands disturbed the Christian family seated next to them. On top of that, they were discussing militant action, and I’m against gay militants politically.”

    Naw, I’m in favor of the stinking government going to bat for Sarah here . . .

    • #22
    • June 25, 2018, at 12:07 PM PDT
    • 3 likes
  23. SecondBite Member

    Je suis Sarah Huckabee Sanders. We need armbands and hats.

    • #23
    • June 25, 2018, at 12:12 PM PDT
    • 1 like
  24. Aaron Miller Member
    Aaron MillerJoined in the first year of Ricochet Ricochet Charter Member

    Muleskinner (View Comment):

    katievs (View Comment):
    As I see it, this isn’t an issue for government and law, but for society and manners.

    Or good economics. If I were the Red Hen’s banker, I wouldn’t like to hear that they are turning away paying customers for frivolous reasons. [….]

    Most large corporations abide by progressive values in their policies and PR. They permit political and religious expression from one side while denying it from the other among employees. It is normal now for corporations to needlessly antagonize half their customers by endorsing progressive politics with “Pride month” displays and whatnot. 

    To the Left, politics is life — all of it, because omnipotent government and totalitarian culture are their goals (though delusionally imagined as freedom and kindness). The Right justifiably wants politics to be only a small part of life, but defense against such aggressive tyranny cannot be. Either the Right accepts that the lawless, intolerant Left is unwilling to respect boundaries or the Left will win with hardly a fight. 

    Protected classes are incompatible with equality under the law. Identifying essential services requires prudential judgments. Prudence among officials is an inescapable necessity of any system.

    The Civil Rights Act should be repealed. Beyond that, I am more concerned that conservatives should find their courage and stop assenting to the tyrannical fads and censorship of statists in business, academia, and other supposedly non-political arenas.

    • #24
    • June 25, 2018, at 12:15 PM PDT
    • 5 likes
  25. PHenry Member

    RushBabe49 (View Comment):
    We Reserve the Right To Refuse Service to Anyone

    That is usually posted in relation to alcoholic beverage sales. Since bartenders/servers can be held liable for under aged or over served patrons, they are given the right to ‘cut off’ anyone at any time. 

     

    • #25
    • June 25, 2018, at 12:56 PM PDT
    • 1 like
  26. Hang On Member
    Hang OnJoined in the first year of Ricochet Ricochet Charter Member

    formerlawprof: Same with political outcasts (of one stripe or another). Should Sarah Sanders be allowed to sue, or is everyone’s liberty enhanced by requiring her to use some form of self-help (if she wants to)? She can go to other restaurants just as good, she can resort to public shaming through Twitter — using only her private account — or she can see if other people will begin their own campaign of moral suasion.

    You are simply ceding the force of law to the other side and as a result you are guaranteed to lose. The Left thanks you.

    • #26
    • June 25, 2018, at 1:01 PM PDT
    • Like
  27. PHenry Member

    If some idiot left wing restaurant owner wants to post a big sign out front that says ‘No Trump supporters welcome’, or a right wing owner ‘No Hillary Supporters welcome’, they should have that right. 

    I understand why racial segregation caused the current state of protected classes and laws banning that kind of discrimination. But it was never intended to mean a business owner couldn’t pick and choose whom they do business with. 

    If vast numbers of business start discriminating against Trump supporters or his administration employees, it might get so bad as to require anti discrimination laws, but until then, lets just go eat somewhere they don’t hate us! 

    I for one wouldn’t want to eat at the Red Hen even if they didn’t throw me out for my political views. 

    • #27
    • June 25, 2018, at 1:03 PM PDT
    • 3 likes
  28. Bob Thompson Member

    PHenry (View Comment):

    If some idiot left wing restaurant owner wants to post a big sign out front that says ‘No Trump supporters welcome’, or a right wing owner ‘No Hillary Supporters welcome’, they should have that right.

    I understand why racial segregation caused the current state of protected classes and laws banning that kind of discrimination. But it was never intended to mean a business owner couldn’t pick and choose whom they do business with.

    If vast numbers of business start discriminating against Trump supporters or his administration employees, it might get so bad as to require anti discrimination laws, but until then, lets just go eat somewhere they don’t hate us!

    I for one wouldn’t want to eat at the Red Hen even if they didn’t throw me out for my political views.

    It should be interesting to see how the business customer base reacts, if there are any reports.

    • #28
    • June 25, 2018, at 1:07 PM PDT
    • Like
  29. Stad Coolidge

    PHenry (View Comment):

    RushBabe49 (View Comment):
    We Reserve the Right To Refuse Service to Anyone

    That is usually posted in relation to alcoholic beverage sales. Since bartenders/servers can be held liable for under aged or over served patrons, they are given the right to ‘cut off’ anyone at any time.

     

    It’s also used for inappropriate dress, behavior, etc.

    • #29
    • June 25, 2018, at 1:10 PM PDT
    • Like
  30. Stad Coolidge

    PHenry (View Comment):
    If some idiot left wing restaurant owner wants to post a big sign out front that says ‘No Trump supporters welcome’, or a right wing owner ‘No Hillary Supporters welcome’, they should have that right.

    I agree. But they should still serve them . . .

    • #30
    • June 25, 2018, at 1:11 PM PDT
    • Like

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