When I was seventeen, my best friend and I decided to start an illegal business venture, something that today might be called an illegal “side gig.” We decided to scalp tickets, at that time prohibited in New York State.
We were season ticket holders to the New York Islanders (our seats were high up, near the rafters of the Nassau Coliseum). Islander playoff tickets went on sale at some ridiculous early morning time, and in the dark before dawn we stood in line with the grungy, grizzled veteran ticket scalpers. My friend and I each bought an extra four tickets to every playoff game, better seats than our own. To finance my portion of the purchase I borrowed the money from a kindly family friend, which was terribly irresponsible of me since her circumstances were such that she could ill afford to lose the money or ever reveal her involvement in this scheme to my parents.
Our venture started out very poorly, which is to say not illegal at all, as the law did not prohibit scalping tickets for less than the face amount printed on the ticket. The Islanders’ first opponent was the lowly Chicago Blackhawks, demand was anemic, and I recall selling one ticket for a single dollar.
Luck than struck. The next opponent was the New York Rangers and demand skyrocketed such that our fifteen dollar tickets could be sold for as much as $50, clearly illegal. Rumors rippled through the ranks of the more experienced scalpers that there might be undercover policemen roaming the Coliseum parking lot, pretending to be buyers and hoping to catch scalpers in the act.
I was terrified.
So I came up with what I thought was a solution. My friend enjoyed creating decals bearing the image of the Islanders insignia. So I asked him to draw an “original” decal for every ticket we had to sell. Then, when we sold the tickets for $50, I asked the buyer to agree that he was paying $15 for the ticket (face value) and $35 for my friend’s original artwork. Some of the buyers initially refused to take the artwork, which must have hurt my friend’s feelings, because he had worked hard on them. I’m sure our approach made the buyers suspicious of us. Perhaps they worried that the actual tickets, like the decals, were products of our artistic creation.
In any event, we found enough buyers willing to agree to our bizarre request of saying aloud that they were buying the tickets for face and the decal for the premium. We sold our entire inventory, made a nice profit, I paid back my relieved lender, and we got away with our scalping caper.
If we had been caught and prosecuted, would our decal tactic have worked? Probably not, but a small part of my seventeen year old brain (insufferably arrogant) would have liked to make the argument just to show how clever I’d been.
My short, sweet career as a scalper came to mind as I’ve been reading about the latest Colorado-based Supreme Court Case involving public accommodation discrimination and the right of free speech or expression.
The facts of the case, 303 Creative vs. Elenis, are fairly straightforward. A devout Christian woman wants to start a business designing wedding websites. But before she started she wanted assurance that she would not have to design websites for LGBTQ couples. Colorado forbids any business that opens its doors to the public from discriminating on the basis of race, sex, religion, or sexual orientation. It’s hard to imagine wider doors than advertising your services on the internet. So, on its face, refusing to accommodate LGBTQ customers clearly violates the Colorado law.
So why is the Supreme Court likely to rule in favor of 303 Creative? It’s based on defining what Freedom of Speech is. If the Court finds that designing a website is a unique, artistic expression that is protected by the First Amendment’s Freedom of Speech, then the Court will rule that the woman’s Freedom of Speech is being infringed upon by forcing her to create art that violates her right to oppose gay marriage. The First Amendment usually wins in battles of competing interests.
But as David Cole, National Legal Director of the ACLU, persuasively argued in the New York Times, if a website design falls within the definition of what is expressive/artistic and is therefore defined as protected speech, so could a plethora of other services. He writes, “Otherwise, interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among countless other businesses whose services contain some expressive element, would all be free to hang out signs refusing to serve Muslims, women, the disabled, African Americans or any other group. The First Amendment protects the right to have and express bigoted views, but it doesn’t give businesses a license to discriminate.”
Illustrating the logic of that last sentence, a business opened by neo-Nazis could advertise on the web the sale of life-sized mannequins of Adolf Hitler, but it could not refuse to sell them to Jews who might want to use them as effigies to be destroyed.
So just as my friend’s Islanders decals, expressive as they might have been to him, would not have saved us from prosecution under the anti-scalping laws, the claim that a website design is somehow an expression of speech should not allow 303 Creative to decide, on the basis of sexual orientation, who to serve as customers coming to them from the internet, the widest public accommodation door ever invented.
If gay marriage bothers you, you have an infinite range of options to express your views and an infinite range of businesses you could start without running afoul of anti-discrimination laws.
If you decide to open a business to the public, you have to respect the laws.
Hoping that the statute of limitations on scalping is not greater than forty three years!
I always wonder, in cases such as this, why the case was brought at all. Why would I, a Jew, want to give my money to avowed Nazis to buy a mini-Hitler? Why would I bother to then spend my money on legal fees to force the Nazis to take my money? Surely there are better ways to demonstrate my opposition to their enterprise. In my youth, I remember my mother would not buy any German product. Why would she want to give them her money after what they did to her family?
I think these things lead us into court battles that stray from the larger point. If 303 loses, she'll be forced to take money for her work from those who don't want to give it to her and this is worth the battle? Why not "out" her for her prejudice and support a more friendly competitor who is also more likely to put her heart into the product than someone forced to do it?
I'm sympathetic, but I think it's a lot more nuanced than that. She (Lorie Smith) is not refusing to provide service to someone because that someone is gay; she is refusing to help celebrate/enable a ceremony that is contradictory to a cornerstone tenet of her religion. There are reasonable arguments that she should not be made to do it and the circumstances seem to invite hypotheticals. Should a Christian rock group be forced to play at the wedding? Should an Orthodox Jewish builder of wedding chuppas, who believes that he undertakes a sacred task, be required to build one for a gay wedding? What about for a Christian wedding between two people who just happened to like chuppahs? If we force Ms. Smith to do the wedding website, how far does that line of thinking go and where does it end up? Hard to say. Even so, I cannot help remember (growing up in the deep south) how many times I heard it said and preached that integration was "against the bible, against God's will, an abomination - that it was a restriction of our freedom of religion. I can still hear them and it's their voices that make me as sympathetic to your argument as I am.