Because the right to assembly has always been about whether or not the government has any ability to restrict or otherwise punish your right to free assembly, not whether or not private actors are obligated to assist.
Let’s put it this way, if we hold that we must require companies to help protests because of the right to free assembly, that means that the local Starbucks wouldn’t be allowed to expel rowdy patrons so long as they’re “assembled”.
To force AirBnB to do business against their will in order to support a political protest would in fact be authoritarian.
Is this right only enforcable in the negative? Are there cases where the government can disagree with business and can instead encourage assembly, or do private ToSes veto that?
Just saw your edit. What regulations aren't authoritarian? I am exploring your use of terms before we end up loading up too much unnecessary meaning.
Rights like speech, association, and assembly come in a positive and negative form. You have just as much of a right to not speak and not associate as you have to speak and assemble. For fairly obvious reasons the right to speak and the right to assemble gets invoked and litigated more often, but First Amendment lawyers typically have held that forcing parties to speak against their will is equally problematic.
In this case forcing AirBnB to take these people in would be to violate their right to free association. With a few exceptions[0] you are not forced to do business with anyone against your will. The idea that we would trample AirBnB's rights in order to make it easier for someone else to exercise their rights is more than a bit troubling.
> Are there cases where the government can disagree with business and can instead encourage assembly...
The government can encourage all they want. As free citizens you also have the right to give the government the finger and say no.
> or do private ToSes veto that?
Depends on the quality of the ToS. You can't just throw obviously illegal or coercive stuff in a ToS and expect a court to uphold it. But the government has regularly upheld the idea that contracts can contain restrictions that the government could not possibly do, at least as long as the contract is freely entered and well formed. The government might not be able to take away your right to speak, but you can absolutely enter into a NDA that will restrict your right to speak.
Similarly, it's legal to walk around without shoes and a shirt (well, if you're a man). But it's also legal for a business to declare "no shirt, no shoes, no service". This is a ToS "vetoeing" (bad term) someone's right to certain types of behavior within the confines of their own business.
> What regulations aren't authoritarian?
Are speed limits authoritarian? What about food safety ones? Most of us would say "no, those are not authoritarian".
Regulations become authoritarian as they begin to expand in scope and arbitrariness, and when the benefit offered to society does not outweigh the infringement of the regulated parties' rights.
Fundamentally, the government does not have a compelling interest in making it easy for a specific party to assemble and protest. They have an obligation to not make it arbitrarily hard, at least excluding reasonable public safety measures, but it's not their responsibility to ensure that there is adequate housing and transit. The idea that the government might get involved in private businesses to force them, against their will, to assist in a political protest is deeply alarming. Down that road bad things lay.
0 - The obvious exception to the right to not associate is anti-discrimination laws. Within living memory there have been various prejudices so common to effectively lock certain minorities completely out of participation in civic society. Congress and the federal government have persuaded the courts that the state has a compelling interest in ensuring that these minorities are able to participate in society, a compelling interest that outweighs the rights of business owners to decide who they want to do business with. These restrictions are largely based around immutable characteristics such as race, sex, or religion (it's assumed that religious beliefs are deeply held, and nobody can force you to change). This obviously excludes political affiliation, behavior, speech, etc, and therefore isn't relevant in this case.
Your assessment with AirBnB relies very heavily on constitutional rights applying to corporate persons. In the US, they appear to, and in the admittedly little time I have spent looking into it, the precedent for the First Amendment being the basis of rulings for corporate persons is quite recent (only ten years ago with Citizens United v. FEC). Not that this refutes anything, directly – just leaves open the possibility for additional refinement to this interpretation in the future.
> no compelling interest
In the US – perhaps. The EU has been frequently at odds with Californian multinationals. Now Merkel and Marcon, who have been no friends of Trump or his supporters, are getting nervous that several corporate actors on this side of the West, can in conjunction turn off the flow of money and communications for political reasons. If regulations become authoritarian when they expand in scope and arbitrariness, perhaps we can label the regulations that these businesses provide (getting ever closer to the level of commodities and infrastructure, rather than mere luxury consumerism) as the onset of corporate authoritarianism.
You've claimed in other threads that this is primarily a boon to anti-trust as the mechanics for regulating corporate power. I agree with this. I also believe that you underrate the dynamic nature of the private-sector/public-sector relationship. The US government is no stranger to interacting with corporate businesses for their own ends. In the 20th century corporations were the primary means by which the US could construct its empire of foreign influence, next to the Navy and the atomic bomb.
Silicon Valley has proven an interesting exception to certain trends. Where post-WWII technological development was framed as American vs Japanese/Soviet, moving into the 21st century corporations began to associate consumerism with political values, beginning with environmentalism, and then towards social justice. Both consumers and executives became more ideological in a way which fed each other, associating domestic politics with the purchase decision.
This makes the relationship between SV and the government good when the government is progressive, bad when the government is conservative; and it creates an inward-facing form of political corporate power, rather than the outward facing version more familiar to the US. There is some nuance here – Musk and Thiel seem to have a newfound preference for Texas and Florida, owning up to SV's cost of operation, and in Thiel's case, ideological slant – but this trend still holds in the case of social media, payment processors, and hotels. In the last week I've also seen insurance companies get on board in removing the insurance of government officials that weren't specifically Trump.
This is all to say that I would expect more controversy surrounding this interpretation of the First Amendment or freedom of association in the corporate context, contingent on the different pressures that SV has in the future. In the short-run we can expect more willing partnerships between government and private business (over just DoD/In-Q-Tel funding), just based on the administration's alignment with their revealed political standings alone. I would ask, if the government forcing businesses to coordinate with them is scary, how much more for not forcing them?
The long-run will depend partially on Biden winning the good faith of American citizens beyond the initial ~50% that got him elected. Not doing so will make 2024 another slaughterhouse, and there will be likely a lot of conflict surrounding platforming again that, if lost, will make the precedents set in this presidential cycle blowback hard. Beyond that, countries in the EU and beyond have room to apply more pressure on SV which could result in large corporate breakups, or if not, a move in demographic from SV infrastructure to ones more local to each country. This would not be good for the US whatsoever – see for instance the current composition of the S&P 500.
In this way I wouldn't take your argument as final, if you are leaning on existing law. There is a lot of room for improvement, and if enough people are pissed off by the willing combination of corporations and the state in way which deprives certain classes of people for too long, the balance of infringement may not tip in this argument's favor.
