July has been quite a whirlwind of a month for us, and not just because we’ve been pumping out the best beers we’ve ever made at a faster pace than ever before while getting so close to the Sierra Vista finish line that we can finally see it. Sadly, it isn’t a new canning line, a new building full of fermentors, or an awesome brewer lined up for the Sierra that’s been the most dramatic thing that’s happened to us at Tombstone Brewing Company recently. The most dramatic thing this month has undoubtedly been the experience of having been boycotted (or protested or “canceled” or whatever you want to call it) by an intensely passionate group of people who’ve decided we’re Nazis (or fascists or some other kind of right wing extremists).
What might we have done to earn ourselves that honor, you ask? Well, a rumor started online that we were “hosting” at our Phoenix location a group that many people believe picked the justices that overturned Roe v. Wade. That group would be the Federalist Society. Someone with the group called and made a reservation. We said we could bring in enough staff to accommodate. Whether that’s “hosting” is something up for debate for us, honestly. We’ve been in that same situation with people and groups of all political stripes since we opened. Democrat and Republican candidates have done meet-and-greets at our breweries. Appointed and elected officials from both parties have had celebrations and fundraisers at our breweries.
With the exception of true hate groups (we actually refused to serve and subsequently kicked out one such group, and I seriously doubt anyone reading this would disagree that they were a true hate group), I am of the opinion that a business should not be refusing service to anyone because of their political beliefs. I think that to do otherwise is bad policy, as the antidote to repugnant speech is almost always engagement and open debate rather than attacking and shaming, which destroys any chance of meaningful dialogue.
Refusing service due to politics is also a slippery slope. How bad would a political candidate have to be on one side or another? Is it their stance on only some issues that are important enough to refuse service? Or is it just certain groups that we shouldn’t allow? What if they aren’t doing an official meeting? What if they are? Would the meeting have to entail something related to the worst thing they do? Should we refuse service to the close families or friends of these people too? Where is the line? Who decides where it is?
I actually have some experience with the Federalist Society because, in addition to being the primary owner and manager of Tombstone Brewing Company, I am a lawyer. Since 2007, I have represented (and still represent, albeit far less often) people being attacked by the government. Sometimes, I sued (and still sue, albeit far less often) the government too. I don’t recall ever handling a case where I ever opposed a single civil liberty. That’s over the course of thousands of clients and tens of thousands of hours of active practice in the areas of criminal defense and civil rights litigation.
As a lawyer, I also happen to know some present and former Federalist Society members. At least one of them was fine with Roe simply because it limits the government. At least one of them loved Roe only because it protected women’s rights. At least one of them hated Roe because it was inconsistent with their preferred method of constitutional interpretation, but they supported and still support codifying what Roe did with federal and state legislation. Many of them are staunchly pro-life and thrilled about Dobbs. A few of them are staunchly pro-life but hate Dobbs because think abortion bans won’t stop abortions any more than the drug war stopped drug use or a gun ban would stop gun violence. They worry abortion bans would actually increase abortions by driving it underground, where people aren’t seen by trained professionals or referred to counselors, but are rather forced to take dangerous DIY measures or pushed to suicide, all while data on all this stuff is unavailable because of the inherent difficulties in studying things that are illegal. Another one of them thinks the right doesn’t belong to women, but to the doctors whose right to practice medicine is being infringed. Another thinks the rights implicated are those of women who might die because of research that can’t happen because of bans now permissible under Dobbs. I could go on and on, but I won’t. The only consistent belief all the present and former members I know share is a preference for textualist or originalist methods of constitutional interpretation; the ideas that the best indicators of a law’s meaning are its text or the intent of its creators.
I know that none of this is going to convince a single one of our protesters that the Federalist Society isn’t evil, though. Because the Federalist Society generally (not the Phoenix Chapter, and certainly none of the individual members thereof) recommended judges that a President nominated and the Senate confirmed, and because those judges were in the 6-3 majority that overturned Roe, the diversity of opinions members of the Federalist Society have generally doesn’t matter to passionate people deeply upset about Dobbs and wanting to do something. It doesn’t matter if many people in the organization genuinely see the group as a debate society or a good networking opportunity or a place to hear a thoughtful review of recent state and federal legal cases, not a powerful organization that promotes right wing judges.
Having represented and advised so many groups and people dedicated to causes over the years, I’m well aware that I’m almost never going to change minds when it comes to the righteousness of a cause or the wickedness of the opposition. The nuances of the circumstances aren’t going to be persuasive to most people. Those who believe the Federalist Society was responsible for overturning Roe aren’t going to be swayed by philosophical or legal discussions about how to interpret the word “host” or whether a business should refuse service to someone because of their beliefs. They aren’t going to have any interest in hearing about the diversity of opinions within the group or what good or at least apolitical things they do. It is no surprise to me at all that many people feel that any business that doesn’t reject a group that might have helped overturn Roe is not a business they want to support. What is a surprise to me with the Tombstone Brewing boycott is that I have yet to hear anyone involved with the protest express even the slightest doubt about whether the course of action they actually chose is likely to achieve the result they want.
That’s pretty depressing to me, honestly. If I had a client come in and explain a similar but unrelated situation with a powerful organization that held sway in government, another right that people are incredibly passionate about, and some other private business, I would tell them that publicly boycotting the business or protesting the organization at the business would be the worst thing they could do to further their cause. That’s the advice I’d give even if the business was definitely “hosting” the organization, if the owner of the business wasn’t a lawyer who’d fought for fifteen years for rights, and if the organization was truly without redeeming qualities. Here’s why: anyone who believes that an organization has the power to do something as important as choose Supreme Court justices would be far better served participating in and engaging with the organization to sway its policy rather than picketing them and driving off the members sensitive to the protest, which is almost certainly going to be the members closer to the protestors’ positions (even if they’re still light years away). The organization’s power is unlikely to fade in any sort of reasonably productive timeline because of the protests if it really is that powerful, and it will likely have been pushed farther away from the positions the protestors want it to take. Starting a picket line might feel like something worthwhile, but it can also be a force for radicalization.
Protests and boycotts can work, and peaceful picketing and civil disobedience lie at the very heart of our democratic government. But not every protest is worth it, even when the cause is worthy. In today’s society, there is always some potential for any protest to fuel a “cancel culture” accusation that ends up harming the cause. Chaining yourself to that pipeline or picketing that abortion clinic directly interferes with the thing you oppose, which is why those sorts of dramatic actions successfully further the cause so often (though I’d note it was boring old politics that killed the Keystone XL when Biden revoked the permit for the pipeline on his first day in office, and even more boring Supreme Court personnel changes that changed the abortion landscape, not a protest that captured the hearts and minds of the public in either instance). The more a protest transitions from stopping someone from doing something to stopping someone from thinking something, the less effective it becomes.
If I didn’t happen to own Tombstone Brewing Company, and had that imaginary client coming to me for advice about protesting been the Phoenix Chapter of the Democratic Socialists of America, the Radical Women Phoenix, and “Fatpoopsniffer”1, I would have had all sorts of suggestions for how they could further their cause. Picketing and boycotting a brewery during a Federalist Society event would most certainly not be one of them. Apparently whomever they did ask felt differently, as here’s what they did:
Our phones pretty quickly started ringing with people harassing my employees to the point that the Democratic Socialists had to post a reminder “to be kind to the workers at Tombstone Brewing Co. when you call, as your calls won’t necessarily reach management.” My inbox filled up with messages ranging from the vitriolic to the disappointed, just like the voice messages. Negative online reviews poured in, and I saw dozens of people sign a petition to boycott my business. I watched purported customers post that they were coming to the brewery that day but turned around, vowing to never come again. People tried to rally other breweries to petition to remove us from the Brewers Guild, and they contacted our accounts to convince them to never sell our beer. Everything we posted on social media was met with comments calling us fascists or Nazis:
Some of those comments were seriously funny, to be honest. But those individuals’ humor made it that much sadder, as these were not all frothing-at-the-mouth extremist weirdos (we were contacted by plenty of those too), but funny, clever people, many with whom I share friends, attacking my business and my employees.
I think and dearly hope that the mob just hadn’t fully thought out what they were doing, as the alternative is pretty terrifying. These are just some of the factors someone should reasonably consider when deciding to demand of Tombstone Brewing – an apolitical business that just makes beer – a public political statement and a refusal of service to a group because of their beliefs:
- Whether we were actually “hosting” the Federalists
- Whether the Federalists are extremists
- Whether they should be protested if they are extremists
- When and how they should be protested if they are extremists
- Whether a business should refuse service to anyone because of their political beliefs
- Where that line should be drawn if they should indeed refuse service for that reason
- What they want out of the protest
- Whether protesting us could realistically accomplish that given who the Federalists are
- Whether protesting us could realistically accomplish that given who I am
- Whether protesting us could realistically accomplish that given what my business is
- Whether potential exists for a boycott or protest to harm their cause
- Whether the potential for harming their cause outweighs any potential benefit
Not a single person contacted me or my brewery privately about any of this before the online campaign began. So that means that, if the protestors really thought this through, implicit in their campaign – publicly launched without any attempt to start any sort of dialogue with me or my brewery – is the terrifying indication that not a single one of those considerations listed above is in any way up for debate to them. There can be no disagreement on any one of those points. The philosophies of me and my employees regarding things totally unrelated to abortion ranging from the meaning of “host” to how a business should deal with refusing service as a general rule and whether protesting would help or hurt the cause simply do not matter. We must either 1) jump into politics and refuse customers, or 2) sacrifice our online reputation if we decide to stay silent and allow the Federalists to meet, no matter how reasonable our position on any of those factors above might be.
Is it apparent why I would find it terrifying if the campaign was anything other than an ill-advised rush to judgment?
I hope that people reading this realize the decisions Tombstone Brewing made have nothing to do with its position on reproductive rights. I’m never going to issue a position statement on that sort of thing. I’m also not going to refuse service to the Federalist Society. I’ll be sad if we lose customers because of those two things, but I know I can’t please everyone. In an incredibly complicated, highly politicized, and emotionally charged world, I’m doing the best I can. If you disagree with me, maybe we can discuss it over a beer.
Speaking of beer, can we get back to brewing it now? This political stuff is exhausting.
- As an aside, I am really hoping Fatpoopsniffer reads this. I’m dying to know if he’s fat and sniffs poops, or if he sniffs fat poops. I’d reach out to him and ask, but I’m sure he thinks I’m a Nazi. Maybe I should reach out to the Federalist Society so they can help me use textualism and originalism to interpret his name.