Last week, a New York City cab driver named Gabriel Diaz, who was seen driving wearing a Nazi swastika armband, had his license suspended for 30 days by the New York City Taxi and Limousine Commission. A number of pedestrians saw the armband and complained to the Anti-Defamation League, which sent a letter to the TLC asking it to investigate and take action on the matter. The TLC reportedly suspended Diaz for acting against the best interests of the public, seemingly a reference to § 54-12(e) of the regulations for medallion cab drivers, prohibiting commission of  “any act that is against the best interests of the public.” The  ADL praised the action as “appropriate and expedient.”

The story has received the level of attention you would expect for something this salacious. Some reports have described Diaz insisting to the media that he has a right to wear the armband and that it reflects his belief in the politics of National Socialism. But there has been no discussion of arguable First Amendment problems with the TLC’s actions. Diaz appears to have accepted the suspension and has promised not to wear the armband while driving, so this likely never will ripen into a legal dispute. Nevertheless, the punishment at least raises some First Amendment questions.

The TLC is an agency of the New York City government, thus subject to First Amendment limitations. Diaz is not an employee of the city or TLC, so he is not subject to the lower constitutional scrutiny applying to public employees, which entails a balancing of the employer’s interest in providing effective and efficient service. Instead, Diaz is a licensee and any rules governing the issuance and retention of the license must conform to the First Amendment. Diaz was punished under a general regulation of conduct (“act that is against the best interests of the public”), but the conduct at issue for which he was punished was wearing the arm band, an obviously expressive act.

There is no indication Diaz ever refused to transport any passenger, which would have violated § 54-20, which enumerates limited reasons for refusing transport. In fact, complaints about the arm band to the ADL came not from passengers but from pedestrians who saw it from the sidewalk. Perhaps the argument is that the arm band sends a message to potential passengers about who Diaz wants to transport;  In praising the suspension, the ADL argued that Diaz “sent a frightening and offensive message to New Yorkers about who might be welcome – and unwelcome – in the taxicab he was driving.” But is that message, absent any actual refusal to serve, sufficient for this punishment, in light of these free speech concerns? We might compare other public accommodations. Imagine a store or restaurant posted a “whites only” sign; even if the business did not actually enforce that policy, it could be deemed to run afoul of public accommodations laws because the sign suggests exclusion and may have the effect of causing people not to enter on the belief that they are unwelcome. Perhaps a swastika on an individual employee is the equivalent of that sign.

Even accepting the “message” argument, the question remains whether that is sufficient to overcome Diaz’s First Amendment interests. Consider a different free speech analogue—a driver listening to Neo-Nazi radio programs while driving around and when picking up passengers. Under § 54-16(e), passengers are “entitled to select what is played on any audio or video equipment in the Vehicle” and to request that the radio be turned off. Thus, any passenger could insist that the driver turn off that offensive program and the driver could be punished if he refused to do so. But it is more of a stretch to insist that the driver have his license suspended because of what was playing when the passenger got in the car. Is the radio program meaningfully distinguishable from the arm band?

Finally, a general TLC regulation of driver attire in the name of professionalism and inclusion probably would be valid. The problem here is that one particular driver has been singled out for one particular message and suspended because of the content of that message. That at least requires a greater showing by the TLC to justify its actions.

There is no question that DIaz holds some reprehensible political beliefs–including denying the Shoah and suggesting that we’ve been told lies about Hitler. But those reprehensible beliefs are the very ones that the First Amendment is designed to protect, even by someone who wants a business license; the Constitution prohibits government from stripping a person of that license explicitly and entirely because that person holds and wishes to express those reprehensible views.

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