“For better or worse, the First Amendment protects the owner’s right to harbor bigoted views, but it does not protect his mass firing,” Judge Newsom said. “Fearless’s position — that the First Amendment protects a similarly categorial race-based exclusion — risks sowing the seeds of antidiscrimination law’s demise.”
But in a dissenting opinion, U.S. Circuit Judge Robin S. Rosenbaum said that the Texas-based right wing group American Alliance for Equal Rights had shown dubious standing in the case. None of the group’s members who claimed they were denied the ability to apply for the grants, she said, had shown any genuine interest in doing so.
“Here, no one doubts the sincerity of American Alliance for Equal Rights’s desire to challenge what it views as ‘distinctions and preferences made on the basis of race and ethnicity.’ … But as American Alliance has portrayed its members’ alleged injuries, it has shown nothing more than flopping on the field,” Judge Rosenbaum said, adding that she would have dismissed the appeal outright.
