MITCHELL Cutler and David Muston had two very different reactions to the attacks of Sept. 11, 2001. Both Cutler, the Canadian-born owner of the popular Saratoga restaurant La Fondue, and Muston, who owns the equally popular independent camera shop Los Gatos Camera, were horrified by the news of the carnage.

But in the aftermath, their paths diverged. Cutler, who describes himself as largely apolitical, made one of the most politically charged decisions of his life by applying for American citizenship immediately after the attacks. He felt, he says, that he owed it to the country that had given him so much in terms of opportunity and was, following 9/11, under siege by those who didn't appreciate America's gifts. Muston, once an aspiring history teacher and still an amateur historian, was, in his words, "just like [the television detective] Columbo ... really, really suspicious about the what the hell was going on."

Just as Cutler had no doubts about choosing American citizenship after 9/11, Muston also had no doubts about his conclusions. "I don't have any doubts at all," he says. "I have no doubts about the official story; I know the official story is an unending string of idiotic, insanely stupid lies."

Five years later, these two very different men's lives and politics have now intersected in one of the more unusual civil rights cases pending in Santa Clara County.

When Cutler strolled into Los Gatos Camera more than a year ago to have family photographs from the first part of the 20th century reproduced for display, there was little to suggest his visit would result in anything but a routine business transaction. He had in his possession a dozen black-and-white photographs that depicted scenes from both Russia and Israel, and had chosen Muston's store because they had done a good job in reproducing his wife's family pictures from Sweden. After a 10-minute conversation with a store clerk, Cutler left.

But the next day, he received a message on his cell phone from Muston saying he wouldn't be printing the photos.

Cutler and Muston have two different versions of what happened after that. According to Cutler, he called Los Gatos Camera and spoke to Muston.

"I said, What's the problem?" Cutler recalls. "He said, Those are Zionist terrorist photos; I said, No, they are not. He said, Yes, they are. I said, What is it in the photos that makes them look like Zionist terrorist photos? He said, Well, I can't tell by the photos, but maybe some of these people were Zionist terrorists. I said, Are you serious? Maybe? I said, Are you sure that you don't want to print these photos? I was giving him an opportunity to say no problem and tell me that he's just joking or pulling my leg or something."

Cutler says he then went to Los Gatos Camera with his son and picked up his pictures, without ever meeting Muston.

Muston's version of the events is markedly different. Muston says that when Cutler initially came into his store and chatted with his salesman about the family pictures, he volunteered that some of them depicted individuals in pre-state Israel and that those individuals were involved in military and political activities in the region and because of the acts they committed they were forced to flee the authorities to France. After his salesman told him about the conversation, Muston says he then thought about the matter for a few minutes and decided it would be against his principles print the photographs. After leaving his message on Cutler's telephone, Muston says that he met Cutler face-to-face when Cutler arrived to pick up the photographs and told him, "I am extremely nonviolent and I do not do pictures of terrorists."

"I explained to him three times that it had absolutely nothing to do with them being Jewish," says Muston. "It had absolutely nothing to do with them being Zionist. OK. It had to do with one thing, and one thing only, and that was terrorism. And I said, 'I will defend to my death anybody's right to be with any religion, race, color, it doesn't matter, but I will not tolerate terrorism. And I sure as hell will not take a picture when you're telling me they're terrorist, fix the picture up for you, make a real nice picture, so you can frame it and hang it on the walls. I'm not going to do it.' At the time he was cool; he was mellow; he didn't in any way argue, debate, disagree or say, 'No, you don't understand.'"

See You in Court

Cutler, after consulting his wife and his attorney, filed a lawsuit against Muston, charging him of discrimination under California's Unruh Civil Rights Act, a state law that broadly prevents businesses from arbitrarily denying customers products or services based race, religion, gender and creed. It was a bitter irony for Muston, who as a child of the 1960s civil rights movement, considers himself a passionate defender of the civil rights of others. But Cutler alleges that Muston discriminated against him solely because he's Jewish, and considers himself fighting the good fight.

"I don't value spending money on attorneys just to spend it," says Cutler. "I feel that if I didn't do anything, what does that say about me and my family? What does that say about the experience of my relatives? By holding him accountable for what he's done is in a certain measure my participation in the American experience."

In some ways, both Cutler's and Muston's version of the story are equally difficult to believe. To believe Cutler, you'd have to believe that Muston, who says several of his most loyal customers are Jewish and who has a provable track record of being a progressive-minded civil rights advocate, arbitrarily decided to pick on Cutler and single him out because of his Jewishness. To believe Muston, you'd have to believe that Cutler would volunteer to a camera store clerk that his relatives engaged in political and military activity which forced them to flee pre-state Israel and then, after being questioned by Muston, affirmed that his relatives were, indeed, "terrorists."

"Can you imagine me walking in and telling David Muston or whoever he imagines that I spoke to that members of my family were Jewish Zionist terrorists and had to flee to France?" asks Cutler. "Can you imagine I would come in without knowing anybody and offer this bit of information?"

If Cutler proves to be right, Muston will, of course, be guilty of blatant discrimination. However, if Muston proves correct—and Muston claims that he has witnesses that saw him talk to Cutler at his store when he picked up his photographs—then the question becomes more interesting. Muston could still very well be found to have violated the Unruh Act; in fact, Cutler asserts that he would still believe Muston violated his civil rights even if he had hypothetically volunteered the information about his family that Muston claims he did. But this would be a different type of legal battle—rather than pitting civil rights against bigotry, it would weigh Muston's personal freedom to follow his conscience against the collective freedoms that the Unruh Act guarantees in California.

The Nazi Case

In a well-known Unruh Act case from 1988, four men wearing Nazi lapel pins entered a German cafe in Torrance and were asked to remove their pins. When they refused, they were kicked out of the cafe, but later filed a lawsuit against the establishment that cited the Unruh Act. Represented by the ACLU, the four men, despite being Nazi sympathizers, won a controversial legal victory when a Los Angeles judge ruled that their civil rights were violated. The case affirmed that the Unruh Act protected symbols (in this case, the Nazi lapel pins) that represented any creed, however despicable it may be.

Muston's case, it seems, takes the 1988 case one step further. Muston agrees that customers cannot be discriminated against because of their political orientation. In depositions, he says that while he considers many of the acts American soldiers committed in Vietnam as terrorist acts, he would still print a photograph of a Vietnam-era American soldier; using the same logic, he continues, he would also print a photograph of a soldier wearing a Nazi uniform. The line he draws, however, is that when he has explicit knowledge that persons depicted in a photograph committed terrorist acts.

"Have we printed pictures of people who engaged in acts of torture, murder, rape, sodomy, child molesting, you name it?" asks Muston. "Of course, but did we know? No. And did we have any reasonable reason to suspect? No. But when a customer stands in front of me and tells me point blank, yes, they committed acts of terrorism—OK, then I know that they are terrorists."

However, that line Muston may not be supported by the law, which is designed to prevent withholding services arbitrarily. What if, after all, the camera shop down the road adheres to a very different principled stance?

Cutler's lawsuit against Muston is now pending in Santa Clara County. Muston has followed Unruh Act protocol, which allows him to offer at least $4,000 to settle the case, and has twice offered to mediate with Cutler. Cutler, looking for an admission of guilty and an apology from Muston, has rejected Muston's approaches, preferring instead to see the case go to trial.

"I think he chose the wrong guy," says Cutler. "He picked on the wrong guy. He could have done this to other people, but he happened to deny the principle to someone who is going to stand up and fight back."

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