[T]he plaintiff filed a discrimination complaint against Thomas Curly/Associated Press, alleging that he had been denied services based, in part, on his religious beliefs in violation of [the Connecticut ban on discrimination in places of public accommodation]. Specifically, the plaintiff claimed that the Associated Press had discriminated against him by refusing to publish articles written by the plaintiff regarding his religious beliefs. In response, counsel for the Associated Press submitted a letter stating that the conduct alleged in the plaintiff’s complaint was outside of the statutory mandate of the defendant and was protected under the federal and state constitutions and federal and state laws.
The Commission on Human Rights & Opportunities agreed with the AP, and so did the courts. The case could have been rejected on the grounds that the AP is not a place of public accommodation (at least as to the contents of its wire service), or that excluding an article based on its religious message doesn’t constitute discrimination against Mehdi because of his religion — I’m not sure how those arguments would have fared under Connecticut law, but they seem quite plausible to me. But the trial and appellate courts instead focused on the First Amendment argument, and the First Amendment analysis strikes me as exactly right:
The Superior Court, in affirming the decision of the defendant, agreed that had the defendant required the Associated Press to publish the materials requested by the plaintiff, such an order would violate the first amendment. The court is correct under Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S. Ct. 2831, 41 L. Ed. 2d 730 (1974), where the United States Supreme Court concluded that a Florida statute requiring newspapers to print a reply from a candidate for elected office if the newspaper had assailed the candidate’s personal character or official record was unconstitutional. Id., 258. “The clear implication has been that any such compulsion to publish that which reason tells [a newspaper publisher] should not be published is unconstitutional.” (Internal quotation marks omitted.) Id., 256; see also Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 391, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973) (court reaffirmed unequivocally protection of editorial judgment and free expression of views); Associated Press v. United States, 326 U.S. 1, 20 n.18, 65 S. Ct. 1416, 89 L. Ed. 2013 (1945) (newspaper not required to publish something that in its judgment should not be published).
Justice White’s concurring opinion in Miami Herald Publishing Co. contains language applicable to the present case. “But the balance struck by the [f]irst [a]mendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed…. [A law requiring publication] runs afoul of the elementary [f]irst [a]mendment proposition that government may not force a newspaper to print copy which, in its journalistic discretion, it chooses to leave on the newsroom floor. Whatever power may reside in government to influence the publishing of certain narrowly circumscribed categories of material … we have never thought that the [f]irst [a]mendment permitted public officials to dictate to the press the contents of its news columns or the slant of its editorials.” (Citations omitted; emphasis added; internal quotation marks omitted.) Miami Herald Publishing Co. v. Tornillo, supra, 418 U.S. 260–61. Guided by this first amendment jurisprudence, we conclude that the Superior Court properly rejected the plaintiff’s appeal from the defendant’s dismissal of his discrimination complaint.
This should also be relevant to the occasional attempts to force newspapers to publish same-sex wedding or civil union announcements (such as in Bird v. New Orleans Times-Picyaune and Linebarier v. Oregonian Publishing Co.). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.