War Against Christmas, Banking Edition

The Federal Reserve sends bank inspectors out to see that the banks are behaving themselves. In a small town in Oklahoma, they discovered...Christmas. And even worse, Christianity:

"Federal Reserve examiners [who came for a regularly scheduled inspection visit] deemed a Bible verse of the day, crosses on the teller’s counter and buttons that say  “Merry Christmas, God With Us. “ ... inappropriate. The Bible verse of the day on the bank’s Internet site also had to be taken  down.... Specifically, the feds believed, the symbols violated the discouragement clause of Regulation B of the bank regulations. According to the clause,  “...the use of words, symbols, models and other forms of communication ... express, imply or suggest a discriminatory preference or policy of exclusion. “ ..."[Feds Force Okla. Bank To Remove Crosses, Bible Verse, KOCO Oklahoma City, December 17, 2010]

This is, of course, part of the Lunch Counter Law, that says you can't have a sign that says "Whites Only." The "Lunch Counter Law" (formally the Civil Rights Act Of 1964)is, as Eugene Volokh points out, a pretty generally recognized exception to the First Amendment. That is, you don't have Freedom of Association, and therefore you don't have Freedom Of Speech on the subject of Freedom of Association. However, Volokh, who is a First Amendment expert, says that the Fed is pretty clearly wrong here.

It seems to me that the Fed action is a pretty clear First Amendment violation. Businesses may indeed be barred from stating that they will not engage in commercial transactions with members of certain groups; that’s a somewhat unusual but well-settled aspect of First Amendment “commercial speech doctrine,” which is more properly thought of “commercial advertising doctrine.” (See Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels. (1973), which has been cited favorably by the Court even in more recent commercial speech cases.) But businesses retain a First Amendment right to express their views, including even views that might be actually seen as insults to particular groups, see, e.g., Sambo’s Restaurants, Inc. v. City of Ann Arbor (6th Cir. 1981). And businesses certainly retain a First Amendment right to say things that might simply be seen as expressing endorsement of a particular religion.

Note, incidentally, that the bank regulators’ actions, if accepted, would mean that a vast range of businesses — not just banks — would be barred from putting up religious symbols. The antidiscrimination rules applicable to banks are very similar to the antidiscrimination rules applicable to a wide range of businesses under federal and state laws.

Senator Jim Inhofe, (remember him?) agrees, and has sent Ben Bernanke (remember him?) a strong letter on the subject.