Blachana, LLC v. BOLI

Article I, section 8 of the Oregon Constitution does not protect coercive speech found to violate ORS 659A.403, 659A.406, and 659A.409.

Blachana, LLC ("Respondents") appeal a final order from BOLI's Commissioner which found that Respondents violated ORS 659A.403, 659A.406, and 659A.409 by discriminatorily refusing to provide equal accommodations to customers based on their sexual orientation. The Rose City T-Girls ("T-Girls") is a social group comprised of individuals who identify as either straight, married couples, non married couples, males who identify as females, cross-dressers, males who have physically transitioned to females, lesbians, and gay males. Intermittently, 8 to 54 members of the T-Girls frequented Respondents' club on Friday nights for nearly two years. After one Friday night, one of the Respondents left a voicemail message for the T-Girls' organizer, requesting that the T-Girls stop coming to the club. In response, the T-Girls asked for clarification why, and the owner responded that the club was losing business because "People think that (a) we're a tranny bar or (b) that we're a gay club. We are neither." Subsequently, a BOLI complaint was filed, and BOLI found substantial evidence to support that Respondents had violated the aforementioned anti-discrimination statutes. On appeal, Respondents argued that the order violated their constitutional right to free speech and expression under Article I, section 8 of the Oregon Constitution, because their speech was not intended to permanently exclude the T-Girls individually, and they had the right to express their desire to promote their business interests. The Court rejected Respondents' facial challenge of the anti-discrimination statutes without substantial discussion. The Court agreed with BOLI's final order, determined that the voicemail was sufficiently coercive to be interpreted to deny the T-Girls from returning on Friday nights based on their sexual orientation. Accordingly, the Court affirmed BOLI's order and associated penalties.