August 14, 2019 |
Calm Down Porn People: Calif. Supreme Court’s Ruling Doesn’t Say What You Think |
SAN FRANCISCO â On Twitter today, thereâs a conversation about a holding from the California Supreme Court in the case White v. Square â a lawsuit in which bankruptcy attorney Robert White sued Square, Inc., alleging that Squareâs seller agreement discriminated against bankruptcy attorneys in violation of the Unruh Civil Rights Act. So, why are some folks in the adult industry so excited about this case? Because non-attorneys think the courtâs ruling means payment processors canât discriminate against potential clients on the basis of their occupation. If this were what the California Supreme Courtâs holding meant, it would indeed be a significant development for the adult industry. Unfortunately, that reading of the courtâs ruling is wrong. The courtâs ruling is narrowly focused on Whiteâs standing to bring a suit against Square. It says nothing at all about the merits of his claim â and the court literally said so in its ruling. If you read nothing else from the courtâs decision, please read these lines: âOur standing analysis is limited to the pleadings, in which White unequivocally alleges his intention to use Squareâs services,â the court wrote. âNor do we express any view on whether a defendant violates the Act by discriminating on the basis of occupation or on Whiteâs adequacy as a representative for a class of bankruptcy attorneys excluded from Squareâs services.â All the courtâs ruling means, really, is that Whiteâs case should not have been dismissed for lack of standing to sue. Thatâs it. The ruling has no impact on whether the trial court should consider bankruptcy attorneys a protected class under the Unruh Civil Rights Act, or whether White is even an appropriate representative of such a class for the purposes of a class action, even if the court were to find bankruptcy attorneys a protected class. And it certainly doesnât mean that adult companies or adult performers should be lining up to sue companies like Square for denying them service. Since Iâm not an attorney, you shouldnât take my word on this either, of course. Happily, Larry Walters is an attorney â and he agrees the courtâs ruling is not what some people are making it out to be. âThe court specifically did not rule on whether discrimination based on occupation can constitute a violation of California law,â Walters said. âThe decision also never addressed whether the case is a proper class action. The ruling is extremely narrow and holds that legal standing can be shown by intent to do business with a website, as opposed to forming an actual contract with the site.â Does that sound like something adult businesses and performers should get excited about? If not, thatâs because it isnât. This is not to say the case has zero potential to produce good news for the adult industry â just that it hasn’t yet reached a stage where it CAN produce such good news. âFuture decisions in the case may impact the ability of adult businesses or performers to claim discrimination by online service providers, but the case has not reached that stage yet,â Walters said. Moreover, the decision is food for thought for adult site operators (well, all site operators, really) for what it says about the thought that should go into composing the terms of the agreements they publish on their own sites. âThe ruling is interesting from a website operatorâs perspective, however, since it underscores the importance of a user agreement, and how specific user terms can potentially trigger discrimination claims before any customer even accepts the agreement,â Walters said. âAdult website operators should ensure that their terms have been evaluated to mitigate the risks of potential discrimination claims under state law.â In other words, if the California Supreme Courtâs holding here is at all significant for the adult industry, itâs significant for a very different reason than the conversation on Twitter suggests. Depending on the final outcome of Whiteâs lawsuit, that fact may change â but for now, at least, any celebration by the adult industry is very premature. |