New Masterpiece Lawsuit: Cakes, Religion & Speech, Round 2–this time, a transgender birthday cake

[smac97]

21 minutes ago, Gray said:

Yes you did. Over and over again.

No, I didn't.

21 minutes ago, Gray said:

A college level discussion on the nature of art vs your total lack of argument? I think mine wins. When the opposing team doesn't show up, they lose by default.

Yawn.

-Smac

[Amulek]

1 hour ago, Analytics said:

The Colorado Court of Appeals articulated the point:

Because “it is possible to find some kernel of expression in almost every activity a person undertakes,” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989),

the Supreme Court has rejected the view that “conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” FAIR, 547 U.S. at 65-66 (some internal quotation marks omitted).  Rather, First Amendment protections extend only to conduct that is “inherently expressive.”  Id.

 

¶ 53 In deciding whether conduct is “inherently expressive,” we ask whether “‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message  would be understood by those who viewed it.’”  Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).  The message need not be “narrow,” or “succinctly articulable.”  Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).  The Supreme Court has recognized expressive conduct in several cases.  See, e.g., id. (marching in a parade in support of gay and lesbian rights); United States v. Eichman, 496 U.S. 310, 312-19 (1990) (burning of the American flag in protest of government policies); Johnson, 491 U.S. at 399 (burning of the American flag in protest of Reagan administration and various corporate policies); Nat’l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43 (1977) (wearing of a swastika in a parade); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (wearing an armband in protest of war).

Yeah, this is referred to as the Spence test. I addressed this previously. 

I believe the cake which was requested in the current controversy meets both elements of the Spence test and would be considered symbolic speech.

As such, Mr. Phillips is under no obligation to participate in speech he disagrees with, and the government cannot force him to do otherwise. 

 

[Analytics]

6 minutes ago, Amulek said:

Yeah, this is referred to as the Spence test. I addressed this previously. 

I believe the cake which was requested in the current controversy meets both elements of the Spence test and would be considered symbolic speech.

As such, Mr. Phillips is under no obligation to participate in speech he disagrees with, and the government cannot force him to do otherwise. 

In the current controversy (i.e. the blue and pink transsexual birthday cake), you may be right.

In the wedding cake controversy, not so much.