Restricted access to public accommodations and public spaces is one of the most common issues facing motorcycle club members across America. Individuals wearing clothing displaying the names or symbols of motorcycle organizations are commonly denied access to bars, restaurants, conventions, courthouses, fairs, race tracks, shows and other events. And although motorcycle organization colors are protected by the 1st Amendment, it is important to understand the distinction between private and government discrimination and what options are available to an individual in each circumstance.
Motorcycle Organization Colors Are Protected By The 1st Amendment.
• Cohen v. California (1971) established that individuals have a 1st Amendment right to wear clothing which displays writing or designs in public spaces. The Supreme Court concluded that an individual wearing a shirt reading “F*#K THE DRAFT was protected expression in a courthouse. See Cohen v. California, 403 U.S. 15 (1971).
There are even Federal cases specific to motorcycle club colors.
• In Sammartano v. First Judicial District Court (2002) the 9th Circuit Court of Appeals said that wearing of motorcycle club colors in a courthouse building is protected speech under the 1st Amendment. Arguments relating to intimidation or the potential for violence based on general stereotypes do not overwhelm this right. See Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir.2002).
• In Coles v. Carlini (2015), relying on Supreme Court precedent, a US District Court recently concluded that the government may not impose restrictions on an individual solely because of displaying membership in a motorcycle club. Importantly, these protections extend to members of clubs that law enforcement has labeled gangs or criminal organizations.
There is “no evidence that by merely wearing Pagans “colors,” an individual is “involved in or associated with the alleged violent or criminal activity of other Pagans members. It is a fundamental principle that the government may not impose restrictions on an individual “merely because an individual belong[s] to a group, some members of which committed acts of violence.” In fact, the Supreme Court has long “disapproved governmental action . . . denying rights and privileges solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972) (See Coles v. Carlini, US District Court for the District of New Jersey, Civil No. 10-6132 OPINION, 9/30/2015, p.28)
• Motorcycle club members and supporters are Constitutionally protected from government intrusions on expression and association at the state and federal level. Federal intrusions are prohibited by the 1st Amendment. These obligations have been incorporated under the 14th Amendment and are extended to the states under the Equal Protection Clause.
• No agent of the government may force or coerce any establishment to impose a dress code that prohibits attendees from wearing clothing displaying the name or symbols associated with a motorcycle organization. It is, for example, illegal for an agent of the government to threaten derogatory action against an entity because they allow individuals to wear patches or supporter shirts in places of public accommodation.
• What relief is available for a victim of government discrimination? An individual that has been denied access to a public space at the hands of a government agent can pursue relief under federal law. Prohibiting individuals from expressing themselves and wearing t-shirts or protective equipment with patches or insignia exposes the government to liability under 42 USC §1983.
Although the practice of restricting access to motorcyclists should be prohibited in all circumstances, it is not quite that simple.
• Private discrimination against motorcyclists is not prohibited. The Constitution is primarily intended to protect individuals from the actions of government as opposed to the actions of other private citizens. This means that a private owner of a public establishment is permitted to deny access to any individual unless they are a member of a “protected class”, a term used to describe groups that the legislature has granted protection in public accommodations that are owned by private parties.
So what can be done?
• Seek legislative relief. Currently, Minnesota is the only state that has adopted a law prohibiting access restrictions to motorcyclists in all public accommodations, even those privately owned. This model should be replicated in other states. All access denials should be documented because these examples can be used to demonstrate the breadth of the issue when lobbying for legislative change. Through legislative action motorcycle riders could be protected from all public discrimination and even private owners of public establishments could be prohibited from restricting access.