Comments on: NYC: products and promotions in commerce must be sensitive to protected groups

By: Timothy E. Harris

Timothy E. Harris — Fri, 06 Mar 2020 13:59:23 +0000

In reply to MattS.

Of course not.
But ever since the Tobacco “Settlement” it’s been S.O.P. when control freaks gain sufficient leverage to get away with it.

By: Hans

Hans — Fri, 06 Mar 2020 12:45:31 +0000

This seems like a First Amendment violation and beyond the Commission’s proper jurisdiction. Commercial advertising and marketing are generally protected by the First Amendment, even when they are racially offensive. For example, a court ruled that a food truck company could name itself “Wandering Dago,” after a derogatory term for Italians. (See Wandering Dago v. Destito, 879 F.2d 20 (2d Cir. 2018)). Prada’s supposedly offensive toy dolls were not nearly as offensive as that term, which the food truck company was nevertheless allowed to use as a business name and in the packaging for its food.

Properly construed, antidiscrimination laws are about giving minorities equal access to products — not allowing them to ban products that some find offensive. New York judges used to mostly understand this. A merchant displaying products bearing Polish jokes was held by the New York courts not to violate state antidiscrimination law — although there was, remarkably, a dissent by three judges in that case. (See State Division of Human Rights v. McHarris Gift Center (1980)).

Under the Commission’s apparent logic, a bookstore could be banned from carrying racist books because they make minority patrons feel unwelcome (even though a few minorities might want to purchase such books to conduct research about racism), or prohibit a video store from carrying videos that are viewed as sexist, or offend someone’s religious beliefs.

By: MattS

MattS — Fri, 06 Mar 2020 05:47:07 +0000

In reply to Timothy E. Harris.

“You are allowed to enter into contracts with terms that would be unconstitutional were they enacted into law.”

But should government agents be allowed to blackmail you into signing such a contract?

By: Canvasback

Canvasback — Fri, 06 Mar 2020 00:04:33 +0000

This type of idiocy ought to go the way of the obscenity trials.

By: Timothy E. Harris

Timothy E. Harris — Thu, 05 Mar 2020 22:47:30 +0000

In reply to No Name Guy.

Prada could have fought the Commission through the Courts and after spending an awful lot of money on litigation they probably would have “won”.
But they could also negotiate an agreement with the Commission to avoid the delays and costs and that’s what they decided to do.

You are allowed to enter into contracts with terms that would be unconstitutional were they enacted into law.

By: No Name Guy

No Name Guy — Thu, 05 Mar 2020 17:58:17 +0000

“Prada will also appoint a diversity and inclusion officer, subject to the commission’s approval. This person will be tasked with “reviewing Prada’s designs before they are sold, advertised or promoted in any way in the United States,” according to the terms of the agreement.”

How is this not prior restraint on expression?

By: Subotai Bahadur

Subotai Bahadur — Thu, 05 Mar 2020 06:10:42 +0000

I think that the ideal response, for the safety of businesses, would be not to make anything, sell anything, buy anything from, ship anything through, hire anyone from, or do anything involving New York City. And it should be a nationwide movement.

Subotai Bahadur