ARI SHAPIRO, HOST:
People are heading to Charlottesville, Va., for a white nationalists rally scheduled for Saturday. It's called Unite the Right. Airbnb is trying to make it harder for them to find places to stay. The company has canceled the accounts of people that it confirmed had used its platform to book lodging for the event. It says those people defy its community standards. Rally organizers say this should be grounds for a lawsuit. Deborah Hellman is a law professor at the University of Virginia in Charlottesville and joins us now. Welcome.
DEBORAH HELLMAN: Thanks so much for having me.
SHAPIRO: If rally organizers do sue, do you think this is a case that they would be likely to win?
HELLMAN: I don't. They're not likely to win mostly because the anti-discrimination law, the federal laws and state laws most likely as well - although I'm not an expert in the state laws of Virginia on this topic - but they prohibit discrimination on the basis of specific enumerated grounds or traits - race, sex, disability, religion. And viewpoint or political ideology isn't one of them.
SHAPIRO: Well, if Airbnb can discriminate against white nationalists, who next? I mean, can they just discriminate against anyone they like as long as it doesn't cross these lines that are spelled out in federal and perhaps state law of race, gender, et cetera?
HELLMAN: Well, that raises an interesting question about what is discrimination and when ought it to be prohibited. So we use the term discrimination in a kind of ambiguous way. Sometimes what we mean is simply drawing distinctions on the basis of a particular trait, and sometimes we mean wrongfully doing that. So for example, in almost every state - or every state, I imagine - you have to be a certain age to drive. So 16 is common. So that's in one sense discrimination on the basis of age.
SHAPIRO: Right.
HELLMAN: But most of us, particularly those of us with teenagers, think that's perfectly permissible. So in that case we're talking about discrimination in the second sense. That is, wrongfully drawing distinctions on the basis of a trait. That example helps us to see that it's not always problematic or impermissible to treat people differently on the basis of a particular trait. So the question you're getting at is should a company like Airbnb be able to draw distinctions on the basis of the trait of viewpoint even though they can't on the basis of certain prohibited traits? And I think that's a deep and interesting question.
SHAPIRO: Meaning is Airbnb a service that should be available to everyone? Or can Airbnb say this is a service for people who check the following boxes, and as long as that checklist doesn't defy federal law it can be as narrowly tailored as they want it to be?
HELLMAN: Exactly. And it's interesting both to think about whether they are required to be open to everybody - and interestingly, though this issue is being framed as one dealing with discrimination, I think a better analogy is boycotts. Many people choose not to patronize certain businesses because they don't like the politics or the policies of those companies.
SHAPIRO: And so this is almost like a reverse boycott where instead of people boycotting the company, the company is boycotting the people. Is that what you're saying?
HELLMAN: That's exactly what I'm saying. That is, is it OK for a big corporation to use its economic power to express its political views?
SHAPIRO: Do you think this is similar to Twitter and Facebook banning people who post what they see as hateful or offensive content?
HELLMAN: I think it's similar in the sense that we should remember that Facebook and Twitter are not the government, that the government has an obligation not to distinguish among people on the basis of viewpoint, which is why the city of Charlottesville is obligated to allow the alt-right to protest. But private entities can make those distinctions. And Facebook and Twitter are doing it, and so is Airbnb.
SHAPIRO: That's law professor Deborah Hellman of the University of Virginia speaking with us from Charlottesville. Thanks a lot.
HELLMAN: Thanks for having me.
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