[Eugene Volokh] Can businesses refuse to serve — or employ — Trump supporters?

KOB-TV (Albuquerque) reports on a New Mexico business that refuses to deal with Trump supporters; the owner of the business, an Internet marketing company, posted an item saying:

… 1st In SEO will no longer do business with any person that is a registered Republican or supports Donald Trump. 1st In SEO will also not do business with business interests that support either the Republican Party or Donald Trump. 1st In SEO obviously has no actual means of determining our clients’ or prospective clients’ political standing. We will rely on the integrity of the men and women who are our clients currently to find another Search Engine Optimization provider if they are Republicans, voted for Donald Trump or support Donald Trump. If you are a Republican, voted for Donald Trump or support Donald Trump, in any manner, you are not welcome at 1st In SEO and we ask you to leave our firm.

1st In SEO will do everything in our power to ensure that we break ties with any person or business that supports Fascism. We will communicate our political stance clearly to all prospective new clients. We will also aggressively advertise the fact that 1st In SEO will not do business with Republicans or anyone who supports our country’s president elect.

We ask you, our current clients, to please respond to this letter and confirm where you stand politically. If you are a Republican or support Trump, we will no longer serve you. You will need to find a new SEO provider. 1st In SEO will, of course, provide your website with the same high quality service you have enjoyed until you are able to find a new provider….

Is a private business’s refusing to serve people based on their political affiliation legal? How about firing employees for their politics (something that might be implied by “you are not welcome at 1st In SEO and we ask you to leave our firm” and “break ties with any person”)? It turns out that this depends on the jurisdiction, and on whether the business is discriminating against clients or employees. The First Amendment doesn’t apply to such private businesses (incidentally, whether or not they take government funds, see Rendell-Baker v. Kohn (1982)), and federal law generally doesn’t ban political affiliation discrimination, so it ends up being a matter of state and local law. In New Mexico, for instance, discriminating against clients on this basis is legal — but firing employees, or threatening to fire them, based on their politics is a felony.

1. Most states ban most businesses from discriminating against clients based on the clients’ race, religion, sex or national origin. Federal law does the same, though for a narrower set of businesses (and doesn’t cover sex discrimination); it also adds a ban on disability discrimination. Many states and some cities also ban discrimination based on sexual orientation, marital status and various other attributes.

But political affiliation is rarely on the list. A few cities or counties do ban such discrimination. D.C. bans discrimination based on “the state of belonging to or endorsing any political party.” Seattle bans such discrimination based on “any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group,” “includ[ing] membership in a political party or group and includ[ing] conduct, reasonably related to political ideology, which does not interfere with job performance.” There are a few other places on this list. But New Mexico doesn’t ban such discrimination in public accommodations, and neither do the city of Albuquerque or Bernalillo County.

One can debate whether such discrimination should be outlawed, by analogy to various other forms of discrimination. Perhaps if wedding photographers can’t discriminate against same-sex weddings (which New Mexico courts have indeed said), Internet marketing companies shouldn’t be able to discriminate against people who have particular views. Or perhaps such antidiscrimination laws shouldn’t be expanded further, or should even be cut back, to leave people free to choose whether to refuse to do business with others, whether or not we’d approve of that choice. But, as a matter of current law, such discrimination against Trump supporters (or Hillary Clinton supporters or Communists or libertarians or whoever else) is legal.

2. Many states and some cities and counties, however, do ban discrimination against employees — or at least firing of current employees — based on their political activity (with different jurisdictions def