Article Re: SCOTUS Review of Gay Rights Case (Wedding Websites)

[smac97]

1 hour ago, pogi said:

Quote

Alas, if the options are to either use the coercive power of government to force someone to speak against their will versus someone not getting a wedding cake from a particular bespoke cakeshop I think the former think the latter should carry the day.

You have to look at this in the larger context of how it would apply across the board. 

Okay.  I think the context can't get much larger than the First Amendment, though.

1 hour ago, pogi said:

Would ruling in favor of this business set precedence for private schools, pharmacies, grocery stores, food establishments, clothing stores, relator associations, rental properties, etc. to discriminate against LGBTQ people by not serving them? 

That's a fair question.  As I noted in my first post: "I {} think that gay people are generally entitled to the same rights as everyone else."  

1 hour ago, pogi said:

Why is it morally ok to "let the free market work it out" for LGBTQ people, but not for people of race, religion, sex, and other protected classes? 

I'm seeing this as more of a "Free Speech" issue than a "Free Exercise" issue.  I have concerns about compelled speech.

I am curious as to your thoughts about Elton John (referenced in my first post). 

Is he "discriminating" against Republicans by refusing to let them use his music in their rallies?  

Do you think Elton John ought to be compelled, under threat of fine and/or imprisonment, to perform his music in a venue he finds disagreeable in some way (or else have his recorded music used on that venue)?  

How do you differentiate A) Elton John refusing to lend his music to a particular venue from B) Masterpiece Cakeshop?

1 hour ago, pogi said:

Is the only difference that distinguishes them a legal ruling of what is protected and what is not? 

No.

1 hour ago, pogi said:

So let me ask the question then, why shouldn't an LGBTQ person be protected the same as a black person or a Latter-day Saint?

If "a black person or a Latter-day Saint," who is not "LGBTQ," wants to order a "rainbow"-themed gay wedding cake as a gift for a friend?  What if the baker politely declines the request, which refusal is based not on the sexual orientation of the customer, but on the content of the "speech" being requested?

1 hour ago, pogi said:

Is the only difference that some people view gay marriage as sin???

I don't understand the question.

If a person believes that gay marriage is not a sin, do you think that person can or ought to be compelled, under threat of fine and/or imprisonment, to say that gay marriage is a sin?  Are you advocating compelled speech?  

1 hour ago, pogi said:

Well, some people view Latter-day Saints as sinners too (worthy of hell fire and damnation!!!), yet we are protected.

Does that protection mean that a Latter-day Saint can sue someone for refusing to speak things he does not want to speak?

1 hour ago, pogi said:

Some people view blacks and Jews as sinners and cursed.  Some people have as much choice in their sexual orientation as they do in the color of their own skin.  What is the difference?

Again, I don't understand the question.  Are you suggesting that a person who "view{s} blacks and Jews as sinners and cursed" can or ought to be compelled, under threat of fine and/or imprisonment, to say that blacks and Jews are not "sinners and cursed"?  Are you advocating compelled speech?  

1 hour ago, pogi said:

Why is it ok to "use the coercive power of government to force someone to speak against their will (not how I would frame the issue)" in regards to race, religion, disability, etc. in the context of a wedding cake, but not ok in this context? Honestly, what is the difference other than personal bias?

Can you give me an example of what you are talking about here?

I get that you are not framing the issue in the context of "speech."  But I am.  Can you see how my assessment, in that context, eliminates the distinction you are suggesting?  I am saying, as a broad principle, that government-compelled speech is bad, that this badness ought to be resisted, and that this badness ought to be resisted by everyone, including LGBTQ folks, because sooner or later they will encounter a "turnabout is fair play" situation.

For example, if a homosexual baker is approached by someone asking for a celebratory cake declaring that "Marriage is only between a man and a woman," do you think that person can or ought to be compelled, under threat of fine and/or imprisonment, to comply with that request and make the cake?

Thanks,

-Smac

Edited February 23, 2022 by smac97

[pogi]

26 minutes ago, smac97 said:

Can you give me an example of what you are talking about here?

I get that you are not framing the issue in the context of "speech."  But I am.  Can you see how my assessment, in that context, eliminates the distinction you are suggesting? 

I don't have time to respond to everything right now (going to lunch), but it looks like you are trying to create a legal loop-hole which people could legally use to discriminate against race, religion, etc. by simply framing the issue in the context of "speech".  I don't think this is a wise road to go down.  

Edited February 23, 2022 by pogi

[Amulek]

33 minutes ago, pogi said:

Would ruling in favor of this business set precedence for private schools, pharmacies, grocery stores, food establishments, clothing stores, relator associations, rental properties, etc. to discriminate against LGBTQ people by not serving them?

Nope.

That's why this is such a great test case for the Court to take up - because it only deals with expressive conduct / pure speech.

A holding in favor of the petitioner in this case would have absolutely zero impact on any of those other areas.

 

[The Nehor]

I really wonder if this should count as speech. We are talking about a wedding company. Are we supposed to believe that all the people making the wedding cards are expressing their feelings about the couple when they put stuff on cards suggesting the marriage is wonderful. What if some of them spent a day with the couple organizing this and afterwards unanimously give the marriage a week….at best?

[pogi]

1 hour ago, Amulek said:

Nope.

That's why this is such a great test case for the Court to take up - because it only deals with expressive conduct / pure speech.

A holding in favor of the petitioner in this case would have absolutely zero impact on any of those other areas.

 

Define "expressive conduct".  Again, these are really blurry lines that could potentially be used in other industries.  General service in any industry could be interpreted as expressive conduct designed to convey a message of support of patrons.  Suddenly, business are free to express whatever the heck they want by denying service to anyone they want and for any reason - because it is against the law to "force them to say something against their will".   You could frame anything as speech.  

It raises the issue of loopholes for discrimination against race etc. in these "expressive" industries.  Do we really want to go there?

Edited February 23, 2022 by pogi

[smac97]

7 minutes ago, pogi said:

I don't have time to respond to everything right now (going to lunch), but it looks like you are trying to create a legal loop-hole which people could legally use to discriminate against race, religion, etc. by simply framing the issue in the context of "speech".  I don't think this is a wise road to go down.  

If you can grant me a measure of good faith, that would be appreciated.

Again, I get that you are not framing the issue in the context of "speech."  But I am.  We are speaking about a legal issue.  That issue needs some dispassionate analysis, which you are presently sidestepping. Here are my questions for you when you get back from lunch:

1. I am curious as to your thoughts about Elton John (referenced in my first post).  Is he "discriminating" against Republicans by refusing to let them use his music in their rallies?  

2. Do you think Elton John ought to be compelled, under threat of fine and/or imprisonment, to perform his music in a venue he finds disagreeable in some way (or else have his recorded music used on that venue)?  

3. How do you differentiate A) Elton John refusing to lend his music to a particular venue from B) Masterpiece Cakeshop?

4. If "a black person or a Latter-day Saint," who is not "LGBTQ," wants to order a "rainbow"-themed gay wedding cake as a gift for a friend, and if the baker politely declines the above request (based not on the sexual orientation of the customer, but on the content of the "speech" being requested), would you find that problematic?  If so, why?

5. If a person believes that gay marriage is not a sin, do you think that person can or ought to be compelled, under threat of fine and/or imprisonment, to say that gay marriage is a sin?  

6. Are you suggesting that a person who "view{s} blacks and Jews as sinners and cursed" can or ought to be compelled, under threat of fine and/or imprisonment, to say that blacks and Jews are not "sinners and cursed"?

7. If a homosexual baker is approached by someone asking for a celebratory cake declaring that "Marriage is only between a man and a woman," do you think that person can or ought to be compelled, under threat of fine and/or imprisonment, to comply with that request and make the cake?

9. Are you advocating compelled speech?

These are the sorts of questions that lawyers and lawmakers pose all the time about legislated statutes, legal disputes, etc.  Waving them off as "looks like you are trying to create a legal loop-hole" doesn't really work.  

Thanks,

-Smac

[pogi]

34 minutes ago, smac97 said:

If you can grant me a measure of good faith, that would be appreciated.

I know you are not that kind of person and I didn't mean to insinuate that.  What I meant to portray is that is what the predictable result would be.  It would create a legal loophole that would be near impossible to fight in court.  Do you disagree?

Regarding Elton John - yes that is clear discrimination against republicans.  Should political association be a protected class, or should we let the free-market work this out, as you would likely suggest?  Defining who and what should be protected is difficult with no clear and obvious lines.

Now let me ask you a question.  Utah legislators just advanced a bill today that would prohibit private business from discriminating based on vaccination status.  Based on your replies here, am I wrong to assume that you are against this bill?  Is this just an example of coercive government intervening in the free-market and forcing people to speak things against their will?    

Edited February 23, 2022 by pogi

[smac97]

2 minutes ago, pogi said:

Define "expressive conduct". 

I think he may be referring to what is more commonly called "symbolic speech."  See here (Wikipedia) :

Quote

Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it.^[1] Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers did not address this issue in the Bill of Rights is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression.^[2] Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.

And here:

Quote

The First Amendment is well-known to cover what we call “freedom of speech.” It means that every individual has the right to express an opinion and be free from government censorship, even if not everyone agrees with it. We discussed the First Amendment as it relates to blogging in a post in 2018.

But freedom of speech doesn’t always include the spoken word. In fact, freedom of speech and expression can take a number of non-verbal forms. These are known as symbolic speech, actions that express specific ideas.

Defining symbolic speech

Non-verbal symbolic speech is the action clearly conveys a specific message to anyone who sees and reads it. Symbolic speech can take the form of:

• Public protests, such as sit-ins and marches
• Demonstrations
• Wearing buttons, armbands or other clothing items (such as t-shirts) that deliver a protest or other specific message
• Nudity
• Flag waving
• Flag burning
• Burning draft cards

The government must have an important reason and prove to a court that the message isn’t protected speech should be punished. Government disapproval cannot be the reason. But like fighting words, not everything is protected speech.

And here:

Quote

Sometimes symbolic speech is more regulated than traditional speech forms

At times, symbolic speech is more regulated than traditional forms of speech because it involves conduct or action, not simply words. The Supreme Court’s ruling in United States v. O’Brien (1968) demonstrates this point well; the standard set in this case continues to be applied. O’Brien involved a Vietnam War–era law that prohibited the destruction of draft cards. Congress defended the law on the basis that it had a legitimate reason for protecting draft cards: they indicated draft status and other information and facilitated government-citizen communication about this status, both critical factors in a time of mobilization for war.

The Court created a four-part test to determine when regulation of symbolic speech violates the First Amendment:

• Is the law within the constitutional power of the government?
• Does the law further a substantial or important government interest?
• Is the interest unrelated to the suppression of free expression?
• Is this regulation the least restrictive means with regard to free speech?

The Court ruled that the draft card regulation passed all parts of the test and thus was constitutional.
...
The O’Brien test has not been considered appropriate in every symbolic speech case. One reason is the provision that the government interest behind a given regulation must be neutral and unrelated to the suppression of speech. The Court has highlighted this point in cases dealing with flag burning, noting in Spence v. Washington (1974) that laws dealing with flag burning or misuse are “directly related to expression in the context of activity.”

The landmark case dealing with flag burning is Texas v. Johnson (1989). At issue was a Texas law prohibiting defacement of or damage to a flag with the knowledge that the defacement will “seriously offend one or more persons likely to observe or discover his action.” Though many no doubt find flag burning offensive, the Court found Texas’s interest of “preserving the flag as a symbol of nationhood and national unity” to be insufficient. The Court wrote that any interest Texas might have in banning such speech was necessarily related to the suppression of free expression, because it was tied to the content of the symbolic speech. Particularly critical was that the flag-burning law prohibited some speakers from expressing their views through flag burning, while allowing others to do just that: those wishing to dispose of old flags were permitted to burn them in “respectful ceremonies,” but those using flag burning as a form of protest could not burn them.

Do you consider flagburning to be "speech"?  

How would you propose to differentiate flagburning from, say, bespoke wedding cakes?  That is, with the former being "speech" and the latter not being "speech"?

2 minutes ago, pogi said:

Again, these are really blurry lines that could potentially be used in other industries. 

Yes.  Hence we have principles of law to consider.  We really aren't coverning much in the way of new ground here.

In years past people who are otherwise devoted to the First Amendment wanted to carve out an exception to it so as to ban flagburning.  While I dislike flagburning, I think it is a form of speech protected by the First Amendment, and so I oppose legislative efforts to ban it.  

Here, we have an issue of compelled speech.  While I may disagree with another person's point of view on a given topic, I think they have a right to not be compelled, under threat of fine and/or imprisonment, to speak things they do not wish to speek.  I therefore oppose legislative and other efforts to compel speech.

2 minutes ago, pogi said:

General service in any industry could be interpreted as expressive conduct designed to convey a message of support of patrons.  Suddenly, business are free to express whatever the heck they want by denying service to anyone they want and for any reason - because it is against the law to "force them to say something against their will". 

The analytical framework above, from O'Brien and Spence and Johnson, can help suss out some of the ways laws can differentiate, say, ordering a bespoke wedding cake (which, in my view, implicates the Free Speech clause) from leasing an apartment (which, in my view, does not implicate the Free Speech clause).

2 minutes ago, pogi said:

Iit raises the issue of loopholes for discrimination against blacks etc. in these "expressive" industries.  Do we really want to go there?

I invite you to give the matter further study and thought.  I'm sensing that you are not particularly familiar with Free Speech jurisprudence.

Thanks,

-Smac

[pogi]

31 minutes ago, smac97 said:

Here, we have an issue of compelled speech. 

How so?

How could this possibly pass as forced "symbolic speech" if the business owner is not intending to symbolically condone or approve of the patrons behavior and life choices?  They are not being forced to intentionally and symbolically say anything against their will.  

Edited February 23, 2022 by pogi

[pogi]

29 minutes ago, smac97 said:

I invite you to give the matter further study and thought.  I'm sensing that you are not particularly familiar with Free Speech jurisprudence.

I invite you to answer the question instead of dodging and patronizing me.  Not really helpful and is guaranteed to turn this conversation sour. 

Edited February 23, 2022 by pogi

[smac97]

1 hour ago, pogi said:

I know you are not that kind of person and I didn't mean to insinuate that.  What I meant to portray is that is what the predictable result would be.  It would create a legal loophole that would be near impossible to fight in court.  Do you disagree?

Yes.

1 hour ago, pogi said:

Regarding Elton John, yes that is discrimination against republicans. 

What if Elton John declined a request for the use of his group from some other group?  If he dislikes the group, is he obligated to lend his speech (his music) to that group?  If so, why?

1 hour ago, pogi said:

Should political association be a protected class, or should we let the free-market work this out, as you would likely suggest? 

Actually, I would say that the First Amendment should operate against compelled speech.

1 hour ago, pogi said:

Defining who and what should be protected is difficult with no clear and obvious lines.

There is plenty of legal guidance available as to symbolic speech, compelled speech, etc.  I think the difficulty is that you seemingly do not want to view this issue in those contexts due to your affection for LGBTQ folks.  I understand and respect that sentiment, but that doesn't really change the legal calculus.  Justice Thomas, in his concurring opinion in Masterpiece Cakeshop, directly addressed this issue:

Quote

The Colorado Court of Appeals was wrong to conclude that Phillips’ conduct was not expressive because a rea­sonable observer would think he is merely complying with Colorado’s public-accommodations law. This argument would justify any law that compelled protected speech.  And, this Court has never accepted it. From the beginning, this Court’s compelled-speech precedents have rejected arguments that “would resolve every issue of power in favor of those in authority.”
...
The Colorado Court of Appeals also noted that Masterpiece is a “for-profit bakery” that “charges its customers.”  370 P. 3d, at 287. But this Court has repeatedly rejected the notion that a speaker’s profit motive gives the gov­ernment a freer hand in compelling speech. See Pacific Gas & Elec., supra, at 8, 16 (collecting cases); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 761 (1976) (deeming it “beyond serious dispute” that “[s]peech . . . is protected even though it is carried in a form that is ‘sold’ for profit”). 
...
The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage.  Again, this argument would justify any law compelling speech. And again, this Court has rejected it. We have described similar arguments as “beg[ging] the core question.” Tornillo, supra, at 256. Because the government cannot compel speech, it also cannot “require speakers to affirm in one breath that which they deny in the next.”  Pacific Gas & Elec., 475 U. S., at 16; see also id., at 15, n. 11 (citing PruneYard, 447 U. S., at 99 (Powell, J., concurring in part and concurring in judgment)). States cannot put individuals to the choice of “be[ing] compelled to affirm someone else’s belief ” or “be[ing] forced to speak when [they] would prefer to remain silent.” Id., at 99. 

I would not characterize this analysis as, in your words, "loopholes for discrimination against blacks, etc.", as that would be an odd accusation to level against Justice Thomas.  Instead, he is dispassionately applying principles of law.

1 hour ago, pogi said:

Now let me ask you a question.  Utah legislators just advanced a bill today that would prohibit private business from discriminating based on vaccination status.

Okay.

1 hour ago, pogi said:

Based on your replies here, am I wrong to assume that you are against this bill?

I'm not sure why you would make this assumption based on my "replies here."  My remarks here pertain to Free Speech, which does not seem relevant to vaccination status.

1 hour ago, pogi said:

Is this just an example of coercive government intervening in the free-market and forcing people to speak things against their will?    

Refusing service based on vaccination status does not appear to implicate the Free Speech clause of the First Amendment, so I don't know what you mean by this proposed legislation "forcing people to speak things against their will."

Thanks,

-Smac

Edited February 23, 2022 by smac97

[pogi]

17 minutes ago, smac97 said:

Yes.

Care to expound?  How could this not be used as a legal loophole?

17 minutes ago, smac97 said:

My remarks here pertain to Free Speech, which does not seem relevant to vaccination status.

It doesn't seem relevant to wedding cakes and services either, yet here we are.  If wedding services can be construed as a free speech issue, so can vaccination status.  Why not?

[smac97]

1 hour ago, pogi said:

Quote

Here, we have an issue of compelled speech. 

How so?

I have posed a number of questions that implicate compelled speech:

Quote

1. I am curious as to your thoughts about Elton John (referenced in my first post).  Is he "discriminating" against Republicans by refusing to let them use his music in their rallies?  

2. Do you think Elton John ought to be compelled, under threat of fine and/or imprisonment, to perform his music in a venue he finds disagreeable in some way (or else have his recorded music used on that venue)?  

3. How do you differentiate A) Elton John refusing to lend his music to a particular venue from B) Masterpiece Cakeshop?

4. If "a black person or a Latter-day Saint," who is not "LGBTQ," wants to order a "rainbow"-themed gay wedding cake as a gift for a friend, and if the baker politely declines the above request (based not on the sexual orientation of the customer, but on the content of the "speech" being requested), would you find that problematic?  If so, why?

5. If a person believes that gay marriage is not a sin, do you think that person can or ought to be compelled, under threat of fine and/or imprisonment, to say that gay marriage is a sin?  

6. Are you suggesting that a person who "view{s} blacks and Jews as sinners and cursed" can or ought to be compelled, under threat of fine and/or imprisonment, to say that blacks and Jews are not "sinners and cursed"?

7. If a homosexual baker is approached by someone asking for a celebratory cake declaring that "Marriage is only between a man and a woman," do you think that person can or ought to be compelled, under threat of fine and/or imprisonment, to comply with that request and make the cake?

9. Are you advocating compelled speech?

You have yet to answer these.

1 hour ago, pogi said:

How could this possibly pass as forced "symbolic speech" if the business owner is not intending to symbolically condone or approve of the patrons behavior and life choices? 

That's not how compelled speech works.

If the government seeks to force you to say something you do not wish to say, that is compelled speech. Whether or not you "condone or approve" of the message is not the point.  That the government is compelling you to speak a message you do not wish to speak is the point.

1 hour ago, pogi said:

They are not being forced to intentionally and symbolically say anything against their will.  

What are you talking about here?  Who is "they"?

Thanks,

-Smac

Edited February 23, 2022 by smac97

[smac97]

24 minutes ago, pogi said:

Quote

I invite you to give the matter further study and thought.  I'm sensing that you are not particularly familiar with Free Speech jurisprudence.

I invite you to answer the question instead of dodging and patronizing me. 

I am trying quite hard to be civil and responsive.  I did not intend to either dodge questions or patronize you.  As I have nevertheless given that impression, I apologize.

You asked: "Iit raises the issue of loopholes for discrimination against blacks etc. in these "expressive" industries.  Do we really want to go there?"

My answer: This seems like both a loaded question and a non sequitur.  If you declined to directly answer a question like "Have you stopped beating your wife yet?", you would not be "dodging" a legitimate question, and would instead be disregarding a loaded question.

Again, if you can grant me a measure of good faith, that would be appreciated.

24 minutes ago, pogi said:

Not really helpful and is guaranteed to turn this conversation sour. 

Again, I was not intending to patronize.  But in discussions about the particulars of COVID-related issues, we were more in your wheelhouse given your training and experience, right?  Here, we are discussing a legal issue pertaining to compelled speech, the First Amendment, and so on.  That's a bit more in my wheelhouse.  I don't think I ever accused you of being "patronizing" when you spoke about matters on which you had more training and experience than I.  Perhaps you could reciprocate when it comes to discussing legal issues?

Thanks,

-Smac

[pogi]

16 minutes ago, smac97 said:

I have posed a number of questions that implicate compelled speech:

I don't see these as compelled speech issues.  You haven't explained to me how this specific case is a case of compelled symbolic speech. 

17 minutes ago, smac97 said:

You have yet to answer these.

I just did.  I previously expressed that I view these as discrimination issues (not all discrimination is illegal), not compelled speech issues. 

19 minutes ago, smac97 said:

If I use the force of law to say something you do not wish to say, that is compelled speech. Whether or not you "condone or approve" of the message is not the point.  That the government is compelling you to speak a message you do not wish to speak is the point.

 It doesn't have to symbolize support of gay marriage unless the creator intends that - no one can force intended message on anyone.   No forced symbolic speech here. 

[pogi]

Never mind. 

Edited February 23, 2022 by pogi

[smac97]

37 minutes ago, pogi said:

Quote

 

Quote

I know you are not that kind of person and I didn't mean to insinuate that.  What I meant to portray is that is what the predictable result would be.  It would create a legal loophole that would be near impossible to fight in court.  Do you disagree?

Yes.

 

Care to expound? 

I am expounding a lot in this thread.

37 minutes ago, pogi said:

How could this not be used as a legal loophole?

What is a "legal loophole?"

You are using pejoratives and vagueness in ways that do not lend themselves to reasoned legal analysis.

37 minutes ago, pogi said:

Quote

My remarks here pertain to Free Speech, which does not seem relevant to vaccination status.

It doesn't seem relevant to wedding cakes and services either, yet here we are. 

Well, my previous attempt to suggest you do a bit more reading on this subject did not go over well (you publicly accused me of being "patronizing").  So I'm not sure repeating this suggestion will be effective.

With respect, you can't ignore the relevant legal principles because they are inconvenient or difficult to understand, or because their application does not yield a result to your liking.  

37 minutes ago, pogi said:

If wedding services can be construed as a free speech issue, so can vaccination status.  Why not?

Merely asserting this is not a legal argument.  Imagine yourself in front of a judge, who is asking you to explain how a person's vaccination status implicates the Free Speech clause.  How would you respond?

Thanks,

-Smac

Edited February 23, 2022 by smac97

[smac97]

6 minutes ago, pogi said:

I never said you don't know what you are talking about, go educate yourself on immunology, vaccinology, microbiology, physiology, pathophysiology, and public health theory and get back with me (which is what you just basically said to me).  

Candidly, the topic here is not nearly as complex as "immunology, vaccinology, microbiology, physiology, pathophysiology, and public health theory."  I wasn't trying to patronize you.  I was trying to get you to spend a relatively small amount of time in reading at least some of the relevant legal authorities on this subject.  I have pointed you to the Masterpiece Cakeshop case.  I have quoted references to O'Brien, Spence and Johnson.  I provided a link to a relevant article on Wikipedia.  These are all legal materials that are readily and freely available to you, but you are apparently refusing to read any of them or apply the concepts in them to the present discussion.  Well, as you like.  But that refusal comes across and petulant and unserious.

Thanks,

-Smac

[smac97]

18 minutes ago, pogi said:

I don't see these as compelled speech issues.  You haven't explained to me how this specific case is a case of compelled symbolic speech. 

I just did.  I previously expressed that I view these as discrimination issues (not all discrimination is illegal), not compelled speech issues. 

 It doesn't have to symbolize support of gay marriage unless the creator intends that - no one can force intended message on anyone.   No forced symbolic speech here. 

Pogi, let's just agree to disagree.  You are refusing to read the relevant materials about symbolic speech and compelled speech.  You are declining to answer questions as to these topics.  You are ignoring my quotations of Justice Thomas.  You are simply asserting that the First Amendment does not apply.  The case law disagrees with you, but you are refusing to read any of it.

We can't have a meaningful discussion about the law under these circumstances.  That's okay.  Life is short.  You have no obligation to talk with me.  Let's cut our losses before more acrimony arises.

Thanks,

-Smac

[Stormin' Mormon]

I'm curious what people think are close analogues to the job of a website designer?  If the designer is just a conduit for the message of the client, then there may not be free speech issues at hand.  In that case, analogues might include a Kinko's worker making a copy of a flyer.  But if the designer is expected to exercise independent initiative and creativity in assembling a given set of raw materials to convey the client's message, then the analogue might be closer to an ad agency.  I don't think it controversial to believe that ad agencies can choose their clients based on the messages those clients wish to convey.  That being so, a web designer should have the same freedom. 

IMHO, website design is a collaborative effort between the client and the professional, both of whom are speaking through the medium of the webpage.  The client establishes the message, provides the raw materials (like photos or biographical information), and has final approval over the project.  But the designer modifies and shapes that message in thousands of little ways: from what's on the main landing page to what can be found in menus, from color schemes to lettering to picture display.  It all adds up to an "overall effect" that cannot be achieved by the client alone. Thus, the speech rightfully belongs to both parties, and both parties have the right to speak or not to speak or decide on what to speak. 

I don't think there's a slippery slope from here to grocery stores and hotels.  There is no creative or expressive product tailored to each customer at a grocery store.  The ham I buy at the deli counter is not cut in artistic ways to express my desired message (which, given the choice, would be: pigs taste delicious).  I don't deny there are grey areas between expressive services and non-expressive services, and those need to be worked out through the case law.  But I think most people believe that businesses like ad agencies, law offices, or PR firms have the right to pick and choose their clients based on the speech the client wants to convey.  At this point, then, it's not a question of larger principles, but a question of simple line-drawing. 

 

Edited February 23, 2022 by Stormin' Mormon
this and that for clarity

[JustAnAustralian]

10 minutes ago, Stormin' Mormon said:

I don't think there's a slippery slope from here to grocery stores and hotels.  There is no creative or expressive product tailored to each customer at a grocery store

Unlikely. The question is very specific 

Quote

"Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment."

So I could see it going into "when does an artist become an artist?" territory.

[pogi]

1 hour ago, smac97 said:

Pogi, let's just agree to disagree.  You are refusing to read the relevant materials about symbolic speech and compelled speech.  You are declining to answer questions as to these topics.  You are ignoring my quotations of Justice Thomas.  You are simply asserting that the First Amendment does not apply.  The case law disagrees with you, but you are refusing to read any of it.

We can't have a meaningful discussion about the law under these circumstances.  That's okay.  Life is short.  You have no obligation to talk with me.  Let's cut our losses before more acrimony arises.

Thanks,

-Smac

To be fair, I am trying to give this subject as much attention as it deserves, but I can only do so with the very limited time I have between patients.  I just want simple , short, concise explanations in layman's terms - focusing on one issue at a time.  One question at a time.  That would be helpful. 

I just want to get to the bottom of one question, which I haven't seen an answer to yet:

What would prevent someone from using this same argument of speech in refusing business to a black person, a Jew, an albino, or a Latter-day Saint (2 of which apply to my own children)?

Edited February 23, 2022 by pogi

[Amulek]

3 hours ago, pogi said:

Define "expressive conduct". 

See @smac97's post above about symbolic speech. There are a whole bunch of things that count as protected forms of expression which aren't what you might normally consider speech: picketing, flag burning, tattooing, etc. - even sagging your pants.

If it helps though, you can ignore that bit. The 10th Circuit already conceded that what the petitioner is doing qualifies as pure speech.

 

Quote

Again, these are really blurry lines that could potentially be used in other industries.

Not really. The distinction between expressive and non-expressive products is usually pretty easy to determine.

That's why the only places you are seeing disputes pop up are in situations where there is a colorable argument that First Amendment rights are in play (e.g., wedding cake designers, floral designers, photographers, calligraphy artists, etc.). 

You know where you are not seeing disputes? Everywhere else.

Not from limo companies; not from tuxedo rental joints; not from venue rentals or pretty much anywhere else. Why? Because there is a large corpus of law that has been dealing with all these questions for years, and the rules used to determine when free speech rights are being impinged has dealt with - repeatedly.

Trust me, the sky will not fall if the petitioner wins here.

 

Quote

General service in any industry could be interpreted as expressive conduct designed to convey a message of support of patrons.  Suddenly, business are free to express whatever the heck they want by denying service to anyone they want and for any reason - because it is against the law to "force them to say something against their will".   You could frame anything as speech.  

One could try. One would fail, but I suppose one could try.

 

Quote

It raises the issue of loopholes for discrimination against race etc. in these "expressive" industries.  Do we really want to go there?

Yes. Because that's where we already are. Do you think it should be different?

Do you really want to go to a place were the government can force people to say things they don't want to say?

Do you want to live in a world where an atheist who works as a freelance writer is forced, against his will, to write copy for the Church of Scientology?

Should a gay songwriter be forced to write a new hymnbook for the Westboro Baptist Church?

Should a black web designer be forced to create a new website for the KKK?

If not, why not? Why is it okay for the government to force one web designer to say something she doesn't want to but not another?

Once we go down that road the First Amendment becomes a dead letter.

Thanks, but no thanks.

 

Edited February 23, 2022 by Amulek

[smac97]

48 minutes ago, pogi said:

To be fair, I am trying to give this subject as much attention as it deserves, but I can only do so with the very limited time I have between patients.  I just want simple , short, concise explanations in layman's terms - focusing on one issue at a time.  One question at a time.  That would be helpful. 

I just want to get to the bottom of one question, which I haven't seen an answer to yet:

What would prevent someone from using this same argument of speech in refusing business to a black person, a Jew, an albino, or a Latter-day Saint (2 of which apply to my own children)?

I don't understand your question.  What "argument of speech" are you referencing here?  What "speech" are you referencing?  What is it that the "black person" or "Jew" or "albino" or "Latter-day Saint" is wanting the businessperson to speak that he (the businessperson) does not want to speak?

Thanks,

-Smac

[pogi]

21 minutes ago, smac97 said:

I don't understand your question.  What "argument of speech" are you referencing here?  What "speech" are you referencing?  What is it that the "black person" or "Jew" or "albino" or "Latter-day Saint" is wanting the businessperson to speak that he (the businessperson) does not want to speak?

Thanks,

-Smac

This is very simple.  Same scenario that you are framing as an issue of speech, but the patron is black, etc. instead of LGBTQ.  The black man might be marrying a white woman and the business owner is morally opposed to miscegenation.  It might be a Mormon temple wedding and the business owner is morally opposed to temple sealings.  Nothing more than what the original scenario is being forced to speak. 

Edited February 23, 2022 by pogi