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“Free Speech for Me but Not for Airbnb”: Restricting Hate-Group Activity in Public Accommodations

Posted by on Saturday, April 20, 2024 in Notes, Volume 77, Volume 77, Number 3.

Sabrina Apple | 77 Vand. L. Rev. 891

As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval.

This Note considers how the rising digital accommodation challenges traditional legal frameworks, particularly as hate groups exploit these new public squares. Analyzed through the lens of Airbnb—its role as a modern public accommodation, its prior experiences with invidious discrimination on its platform, and its confrontations with allegations of discrimination issued by patrons excluded for hate-group affiliation—this Note parses the tension between ensuring equal access and upholding free speech. In so doing, this Note offers a legal framework for analyzing when digital entities qualify as public accommodations under Title II, when accommodations may exclude patrons while upholding Title II values, and what defenses an accommodation may employ if a patron establishes a speech interest. Ultimately, this Note argues that the digital accommodation may legally exclude unprotected traits to meaningfully include those who are protected.

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Sabrina Apple