On Friday, White House Press Secretary Sarah Huckabee Sanders was asked to leave the Lexington, Virginia Red Hen because of her work with the Trump administration. The owner of the small restaurant in a town overwhelmingly opposed to President Trump privately explained to Sanders that it must uphold certain standards, “such as honesty, and compassion, and cooperation.” Sanders tweeted that the restaurant’s decision spoke more about its uncivil values than her own, and Trump, horribly and childishly, blasted the restaurant as “dirty.” Whether kicking a press secretary out of a restaurant actually upholds the Red Hen’s standards encompasses both philosophical and tactical questions. I want to touch upon a few aspects of these questions, and also to contextualize this issue with other current debates involving free speech values and property rights and liberty interests of private businesses.
First, the Red Hen has the right to deny Sanders service. There are good arguments that businesses should have a lot more rights than they do in terms of how they manage their private contractual arrangements. Legally, “political opinion” is not protected against discrimination by most states’ public accommodations laws (unlike, as examples, race, religion, and sexual orientation). Political affiliation is not deemed as protected a class under civil rights laws perhaps because there would be serious free speech values compromised (if not actual First Amendment associational rights) when a business is forced to accommodate speakers who engage in speech and conduct to which the business virulently objects.
That said, I think the restaurant should have served her. If Donald Trump wanted to take a law school class from me, I would teach him. Indeed, I would happily teach him. He could learn something about our constitutional structure and the nature of our liberties as against the government. I would also be edified by listening to his concerns in a calm, rational environment. If Sanders were injured and needed a doctor, that doctor would operate on her. Both philosophically and tactically, I think we should all just do our jobs, in a sense. Siphoning people off into political silos, when eating, working, and playing, makes Sanders more hardened in her views, not less. It makes the word a more hostile place, not a better place.
Reasonable minds can disagree on this point. Some might say that when politicians cross a line into criminal or grossly inhumane behavior, we must oppose (#resist) them, even just symbolically, by serving them a heaping plate of insult and indignity instead of dinner. Would I happily teach Joseph Goebbels criminal procedure? Ignoring the almost overwhemingly dramatic differences between the Nazis and the Trump administration, and accepting only that this administration is too similar for comfort, my answer is yes, although I would be even more grateful for blind grading norms. Philosophically, I believe in the maintenance of certain ideals over and above the exigencies of any pressing situation. Teaching the Fourth Amendment gives one great perspective on the value of principles, over, say, safety and law enforcement, even when dangerous crime is at issue. Tactically, I believe we have much more to gain than to lose by recognizing the humanity in our political enemies, even if they do not recognize our own.
Many comparisons have been made to Masterpiece Cakeshop, where the Supreme Court recently held that the Colorado Civil Rights Commission displayed religious animus and thus cannot force a baker to make a wedding cake for a gay couple. The Red Hen situation differs from Masterpiece Cakeshop on several axes. First, sexual orientation is a status entitled to civil rights protection under Colorado public accommodations laws, so denying service to gay people is not legal, whereas denying service to, say, people who love the Insane Clown Posse is. On the other hand, Jack Phillips would not turn away gay couples from purchasing everything at his bakery. His refusal to create a custom-made cake for a wedding implicates the First Amendment far more than a blanket denial of service at a restaurant, given the fact that a wedding cake (may, although perhaps not) involves artistry and expressive conduct. I fully support ensuring that people apply their own principles consistently, but trying to expose hypocrisy by comparing the two situations is a complicated task, because the Red Hen case is both an easier and a harder case for tolerating the denial of service.
Ultimately, the issue comes down to what “honesty, and compassion, and cooperation” mean. I believe they mean allowing people to deny service if they wish, but arguing that this decision is not the best way to show either compassion or cooperation. And if any member of the Trump administration wishes to sit in on one of my classes, please contact me immediately. I’d like to discuss the logistics without delay, and perhaps give you a few fun reading assignments in advance (materials reflecting both sides of any issue, of course).
[Edit: I want to add that I have been denied service in two different restaurants because of my race, once in America and once abroad. Both situations were fairly unambiguous. Both were quite degrading. I will never forget either (the one abroad was much more shocking, although totally legal in that country), and I have the privilege of not worrying about that situation on a daily basis — although, I think sometimes a privileged position should be used to uphold greater principles, not to allow oneself to be guilted into abandoning those principles for lack of personal experience.]