One Comment

Volokh may be right that when viewed as a matter of the state’s police power, the Arlington Commission’s action is Constitutional. But surely we can come up with something, if not First Amendment-based, then due process-based, to fend off such freakishness. Brainstorming here, the state is unConstitutionally forcing the video store to 1) practice an unwanted religion (extreme political correctness), 2) engage in compelled speech, 3) impair his right of non-contract (OK, that one needs work), and 4) deprive him of property unjustly. Or, they’re seriously violating his right to privacy, which although not found in the Constitution, has been implanted by the Supreme Court. If penumbras and emanations are big enough to cover all the actions now covered by that concept, SURELY the video store owner’s modest right not to make these tapes is, too. If not, we’ll have to sadly conclude that jurisdprudence isn’t based on the letter of the law, but the personal political preferences of the federal judiciary.

Perish the thought.