Hate groups aren’t protected class for businesses

0
1185

Attorney Eric Kniffin says businesses can choose customers.

Mix a plush Colorado Springs resort with a controversial right-wing extremist group in these times, and it becomes a powder keg waiting to explode.

Cheyenne Mountain Resort avoided that potentially volatile situation by canceling the reservation of VDARE Foundation, a white nationalist group that had booked the facility for a three-day conference in April 2018.

The resort has been tight-lipped, Colorado Springs Mayor John Suthers issued a statement praising its decision, and VDARE founder and leader Peter Brimelow responded in his customary manner, claiming his group is being persecuted.

“Further proof we no longer live in a free country, thanks to Totalitarian Left bullying and capitalist cowardice,” Brimelow wrote in an email response to more than a dozen questions from the Business Journal.

Anything but, countered Springs attorney Eric Kniffin with Lewis Roca Rothgerber Christie law firm.

“Businesses can generally refuse to do business with anyone they choose,” he said.

He cited the public accommodation law, noting that Colorado’s is broad while the federal statute is pretty narrow and “talks about restaurants and hotels.”

“Colorado’s is pretty much any business that offers things for sale,” he said. “So, if you’re a business that engages in anything for sale to the public, you are a place of public accommodation. The second step has to do with denying services on the basis of a protected class. The protected classes are race, creed, color, sex, sexual orientation, marital status, national origin or ancestry. Sexual orientation includes gender identity. As a general matter, you can decide not to do business with someone because of their beliefs or associations, but you can’t do it when it lines up with one of these classes.”

Exceptions, he noted, could be for health code reasons or if someone is belligerent or intoxicated.

The bottom line, Kniffin said, is that businesses can mostly choose their customers.

“The main restriction is public accommodation,” he said.

Kniffin is also a member of the Country Club of Colorado at Cheyenne Mountain Resort.

“As a member, I’m glad they did the right thing,” he said. “I join Mayor Suthers in thanking the resort for doing the right thing.”

Was Kniffin surprised by the cancellation?

“Strictly at a human level, no business wants to be caught in a firestorm like this,” he said. “If you strip everything else away from this … they want to provide a nice experience for their guests. None of their guests want to be caught up in controversy. They don’t want parades and demonstrations.”

And threats of protests were already being tossed about.

VDARE.com deemed A ‘HATE WEBSITE’

According to the Southern Poverty Law Center website, VDARE was started in 1999 by Brimelow, an English immigrant. SPLC says “VDARE.com is an anti-immigration hate website. … where relatively intellectually inclined leaders of the anti-immigrant movement share their opinions. VDARE.com also regularly publishes articles by prominent white nationalists, race scientists and anti-Semites.”

Brimelow calls VDARE.com a “forum site,” although Kniffin said many fringe groups like to portray themselves one way while catering to extremists.

Longtime Washington, D.C., insider Pat Buchanan has been published on the site, as has conservative columnist Michelle Malkin, along with Jason Kessler, who organized the protest by white supremacists and neo-Nazis in Charlottesville, Va., on Aug. 12 that resulted in a clash with counter-protesters. A car was driven into the crowd of counter-protesters, allegedly by a rally participant, killing 32-year-old Heather Heyer.

Brimelow claims no affiliation with the rally or with Kessler. But he did praise Kessler’s white nationalist writings — he’s had five articles published on VDARE.com in 2017.

Four days after the Charlottesville tragedy, Cheyenne Mountain Resort canceled VDARE’s reservation and issued a short statement: “Cheyenne Mountain Resort will not be hosting the VDARE Foundation in April of next year. We remain committed to respecting the privacy of guests at the resort.”

Suthers responded with a statement, also on Aug. 16: “Businesses need to make their own decisions in situations like this, and in doing so, consider both the business and community impacts of hosting disruptive groups.

“I know I am joined by many Colorado Springs residents when I say I appreciate the Cheyenne Mountain Resort’s action to cancel this conference, and its conscientious decision not to bring this group to Colorado Springs.”

FIRST STATEMENT

The day before, Suthers had issued a terse initial statement: “The City of Colorado Springs does not have the authority to restrict freedom of speech, nor to direct private businesses like the Cheyenne Mountain Resort as to which events they may host. That said, I would encourage local businesses to be attentive to the types of events they accept and the groups that they invite to our great city.

“The City of Colorado Springs will not provide any support or resources to this event, and does not condone hate speech in any fashion. The City remains steadfast in its commitment to the enforcement of Colorado law, which protects all individuals regardless of race, religion, color, ancestry, national origin, physical or mental disability, or sexual orientation to be secure and protected from fear, intimidation, harassment and physical harm.”

Kniffin said Suthers’ statements were a good civics lesson regarding business, the limited role of government and free speech.

“This is why the ACLU [American Civil Liberties Union] stood up for the [National Socialist Party of America] back in 1977 in Skokie [Ill.],” Kniffin said.

“This is a bedrock position in American law and it goes back to Louis Brandeis, the first Jewish Supreme Court justice [in 1916]. He said the answer is more speech, not enforced silence. That is distinctly American. We’re OK with disagreement in our society.”

Brimelow said the resort paid a “very significant” penalty to break the contract.

“We’ve obviously been deprived of our civil rights,” Brimelow wrote in an email. “If we were the NAACP, the Justice Department would sue. But they are a bit busy right now. Some lawyers tell us that there’s a possible suit for conspiracy and tortious interference with contract against third parties like the [Southern Poverty Law Center].”

Kniffin said anyone can file a suit.

“Sometimes doing the right thing — morally or business-wise — involves some measure of legal risk,” he said.

Back in January, VDARE Foundation had a conference scheduled at Tenaya Lodge, just outside Yosemite National Park, that was also canceled by the resort but no lawsuit was filed.

Kniffin said there are lessons to be learned from this incident — even if it’s only to be prepared.

“Everyone thinks it will never happen to them,” he said, “but a business owner might need to sit down with leadership or legal counsel and think through ‘What if this happens to us? How can we best be prepared?’ We’re living in a very fragile time with social media and YouTube videos, and politics are very prickly.”

Another lesson, Kniffin said, is choosing your associates.

“Branding is very important,” he said. “Why did all those CEOs resign from [President Donald] Trump’s boards? The No. 1 thing is whether this is helping or hurting your company.” 

NO COMMENTS