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

[smac97]

1 hour ago, pogi said:

Yep.  That's why "yes, really" it changes things completely.  If a motto is not seen as speech, then there is no case. 

I don't understand.  Did you read Wooley v. Maynard?  It never said that "a motto is not seen as speech."  It instead held precisely the opposite:

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The District Court held that by covering up the state motto "Live Free or Die" on his automobile license plate, Mr. Maynard was engaging in symbolic speech and that "New Hampshire's interest in the enforcement of its defacement statute is not sufficient to justify the restriction on [appellee's] constitutionally protected expression."  We find it unnecessary to pass on the "symbolic speech" issue, since we find more appropriate First Amendment grounds to affirm the judgment of the District Court. We turn instead to what in our view is the essence of appellees' objection to the requirement that they display the motto "Live Free or Die" on their automobile license plates. This is succinctly summarized in the statement made by Mr. Maynard in his affidavit filed with the District Court: "I refuse to be coerced by the State into advertising a slogan which I find morally, ethically, religiously and politically abhorrent."

We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a  manner and for the express purpose that it be observed and read by the public. We hold that the State may not do so.

We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v.Barnette (1943). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind."
...
New Hampshire's statute in effect requires that appellees use their private property as a "mobile billboard" for the State's ideological message - or suffer a penalty, as Maynard already has. As a condition to driving an automobile - a virtual necessity for most Americans - the Maynards must display "Live Free or Die" to hundreds of people each day. The fact that most individuals agree with the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.

"New Hampshire's statute in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message."

In other words: Motto = Speech.  Compelled speech, even.

Thoughts?

1 hour ago, pogi said:

So, would you agree that content and intent to communicate are important in determining what is speech?

Which test are you applying here?  Spence?  Johnson?  Hurley?

1 hour ago, pogi said:

The designer or artist gets to decide the message unless a specific message is communicated by the customer - in which case the designer can decide to do the work or not.  

Did you just make this up?  Or are you paraphrasing a case?

It's fine to stake out a position and declare it, but it helps to understand if you are offering your opinion versus applying extant principles of law.

Thanks,

-Smac

Edited March 4, 2022 by smac97

[pogi]

1 hour ago, smac97 said:

I don't understand.  Did you read Wooley v. Maynard?  It appears not, as it never said that "a motto is not seen as speech."  It instead held precisely the opposite:

smac, you are interjecting in a conversation I am having with someone else.  Based on what he originally wrote, it sounded like he was saying that the motto was not seen as speech, with further clarity it changed everything for me.  

Things get so convoluted and difficult when I speak with you.  I feel like we just talk past each other the whole time and it takes so much effort and time to respond to your novel length posts that it is not worth it to me to engage with you unless you can keep it simple and concise without dissecting every sentence I write into a dozen different arguments and questions/comments.

1 hour ago, smac97 said:

Which test are you applying here?  Spence?  Johnson?  Hurley?

I don't know what you are talking about.  I am not applying a test here, I am asking you a question. 

1 hour ago, smac97 said:

Did you just make this up?  Or are you paraphrasing a case?

It's fine to stake out a position and declare it, but it helps to understand if you are offering your opinion versus applying extant principles of law.

Thanks,

-Smac

This is my opinion based on common sense.  Unless you can prove to me through "extant principles of law" that speech can be forced on someone where there is no legally recognized form of speech or intention to communicate on the part of the customer, I don't find it to be unreasonable. 

1 hour ago, smac97 said:

I have not accused you of anything.  I retract and apologize for my reference to "LaLa Land" and any other remarks that you took as insulting.  I did not mean to insult you, but to criticize your argument.  I hope you can appreciate the distinction.

I am not going to respond to this entire post.  It is too much to have 2 or 3 different conversations going on with the same person + everyone else + the length of your posts.  Too belaboring for me. 

I will accept your apology when you acknowledge my grievances.  You claim that you didn't accuse me of anything but you absolutely did accuse me of being flagrant (which I wasn't).  You also implied that I don't have a reasonable mind when you said that reasonable minds can't disagree on this.  Criticizing my argument is one thing, mocking it is another.   You mocked my argument in that it would literally be laughed at and slapped with some penalties by a judge of your own imagination. 

 

Edited March 4, 2022 by pogi

[smac97]

50 minutes ago, pogi said:

smac, you are interjecting in a conversation I am having with someone else. 

In the same thread.  About the same topic.  People interject all the time.  

50 minutes ago, pogi said:

Based on what he originally wrote, it sounded like he was saying that the motto was not seen as speech, with further clarity it changed everything for me.  

Again, did you read Wooley v. Maynard?  It sounds like you did not.

No biggie.  Life is short.  But now that I have pointed out what Wooley said, is everythign still "changed" for you?

50 minutes ago, pogi said:

Things get so convoluted and difficult when I speak with you.  I feel like we just talk past each other the whole time and it takes so much effort and time to respond to your novel length posts that it is not worth it to me to engage with you unless you can keep it simple and concise without dissecting every sentence I write into a dozen different arguments and questions/comments.

I do try to be concise, but not at the expense of clarity.  When broad legal topics like "Free Speech" and "Compelled Speech" "Symbolic/Expressive Speech" are under discussion, we need to be fairly precise in what we are saying and how.  

50 minutes ago, pogi said:

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We're speaking of bespoke wedding cakes.  "Baked goods" is a far larger category of items.

So, would you agree that content and intent to communicate are important in determining what is speech?

Which test are you applying here?  Spence?  Johnson?  Hurley?

I don't know what you are talking about.  I am not applying a test here, I am asking you a question. 

Your question is too vague and broad.

50 minutes ago, pogi said:

This is my opinion based on common sense. 

I figured.

There is a lot of "common sense" in the law.  But there are also a lot of other things in it, including the weighing of conflicting points of law.  On the one had, we as a country are big into equal protection and tamping down on invidious discrimination.  On the other hand, we as a country are also big into Free Speech and constraints on governmental authority to regulate it.  There is some tension between these two broad considerations, so merely asserting that what you are saying is "common sense," without more, will not quite suffice.

50 minutes ago, pogi said:

Unless you can prove to me through "extant principles of law" that speech can be forced on someone where there is no legally recognized form of speech or intention to communicate on the part of the customer, I suggest that my opinion is legally sound and would hold up in any court.

What do you mean by "no legally recognized form of speech?"  What are you referencing here?

50 minutes ago, pogi said:

I am not going to respond to this entire post.  It is too much to have 2 or 3 different conversations going on with the same person + everyone else + the length of your posts.  Too belaboring for me. 

As you like.

50 minutes ago, pogi said:

I will accept your apology when you acknowledge my grievances.  You claim that you didn't accuse me of anything but you absolutely did accuse me of being flagrant (which I wasn't). 

You said: "Either way they decide, it is compelling the other person to say something they don't want to say."

I responded: "Patently false.  Flagrantly incorrect.  Party A has not been compelled to say, or not say, anything."

If I state that you have said somethign that is incorrect, that is not an accusation.  It is a statement that what you are saying is really, really incorrect.  Conspicuously so. 

I nevertheless apologize for the use of "flagrantly."  I was not intending to insult.  But your statement was categorically incorrect.  I was trying to convey that.

50 minutes ago, pogi said:

You also implied that I don't have a reasonable mind when you said that reasonable minds can't disagree on this. 

You said: "Well, if the government rules in favor of the baker, than that is government compelling speech on the buyer."

I responded:

Quote

No.  No.  Nope.  Wrong.  Categorically.  Unequivocally.  Reasonable minds can disagree about all sorts of things, but not about everything.  

You are plainly and incontrovertibly wrong.  If the government allows Party B (the baker) to exercise his First Amendment right to not speak things he does not want to speak, then Party B's rights have been protected.  Party A's Free Speech rights, meanwhile, have never been implicated.

We are headed into pretty unserious territory here.  LaLa Land, even.  Protecting Jack Phillips from compelled speech has no corollary effect of "compelling speech on the buyer."

If a lawyer were to try this line of reasoning, he would get laughed out of court.  Possibly literally laughed at.  Worse, he may even get in trouble with the judge for wasting the court's time with such an absurd, obtuse, unserious claim.

Again, don't take my word for it.  Open up your question to the other attorneys on the board.  Go ask any attorney friends you have if what you are saying here makes any kind of sense.

You raked me across the coals quite a few times for things I said pertaining to COVID.  The coalraking was because you know a lot more about the particulars of COVID and associated issues than I do.

Here, we are discussing a legal issue.  You are presenting a legal argument that if the government does not compel Party B to say the things Party A wants him to say, then the government is - in your words - "compelling speech on" Party A.  That is hugely wrong.  Legally.  Factually.  It makes no sense.  I am truly trying to engage you in a substantive discussion, but "if the government rules in favor of the baker, than that is government compelling speech on the buyer" is painfully incorrect.

I don't say that to demean or insult you as a person.  It is your argument, your reasoning, that I find very, very wanting.

Again, don't take my word for it.  Go present what you said to other attorneys and ask them if it makes any kind of sense.

50 minutes ago, pogi said:

Criticizing my argument is one thing, mocking it is another.   You mocked my argument in that it would literally be laughed at and slapped with some penalties by a judge of your own imagination. 

I didn't intend to mock it.  I was quite serious.  Your argument really is that bad.

Nevertheless, I apologize.  I am trying to take your argument seriously, but some of the stuff you are saying is really out there.  And it doesn't help that you are not even minimally familiar with the relevant legal authorities.

Thanks,

-Smac

Edited March 4, 2022 by smac97

[Stormin' Mormon]

1 hour ago, pogi said:

What about utility websites like a clock or a notepad, etc.?

Regardless, that's not the kind of website we are discussing.

The website that 303 Creative declined to design was one that WOULD communicate a message: Jeff and Steve got married.  You may think that's a rather uncontroversial statement of fact.  The message may in fact be anodyne, boring, or lacking in social commentary.  But it IS a message; it IS a statement.

Which puts it squarely in the realm of free speech protections, including protections from compelled speech. 

[pogi]

57 minutes ago, smac97 said:

I was quite serious.  Your argument really is that bad.

So bad it deserves to be mocked huh?  We are done.  

Saying that I am wrong and explaining why by using reason is one thing.  Setting up an imaginary court of your making that literally laughs at my argument serves the sole purpose of accentuating the idiocy of my remarks and doesn't explain why I am wrong.  It serves no purpose but to mock.  I have a hard time believing you wouldn't get scolded for such a barrage of insult in court.   It is unnecessary to demonstrate that I am wrong.   It doesn't strengthen your argument.  It doesn't weaken mine.  It is all an imaginary scenario in your head with an imaginary judge and is based on a faulty assumptions and interpretations of my argument, to be honest.  You don't even understand what I am saying based on your responses.  

What about the part where you said that reasonable minds can't disagree on this?  Nothing personal?  I just find it ironic that you would invest so much time trying to reason with a person who doesn't have a reasonable mind. 

You are entitled to your opinion, but in regards to the cake, it is your opinion, and not that of SCOTUS as you would have me believe.  The case was not decided on the basis of free speech, despite the defendants argument of free speech.  As much as you make it sound like fact.  There is no legal decision made on the case in regards to free speech despite how solid in stone you make it sound, reasonable minds still disagree on the case. 

 

Edited March 4, 2022 by pogi

[smac97]

1 hour ago, pogi said:

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I was quite serious.  Your argument really is that bad.

We are done.  

Saying that I am wrong and explaining why by using reason is one thing. 

I have done that.  Repeatedly.  At length.

1 hour ago, pogi said:

Setting up an imaginary court of your making that literally laughs at my argument serves the sole purpose of accentuating the idiocy of my remarks and doesn't explain why I am wrong.  It serves no purpose but to mock. 

I have apologized for saying "LaLa Land."  I never used the word "idiocy."  I have never disparaged your intelligence or your character.

Instead, I have critiqued your argument, which is really bad.

1 hour ago, pogi said:

I have a hard time believing you wouldn't get scolded for such a barrage of insult in court.

I have seen some really bad arguments presented in court, including by earnest-and-zealous-but-uninformed-as-to-the-basic-applicable-legal-principles-of-law pro se litigants.

And you are right, I would not use words like "LaLa Land."  But I would be pretty emphatic.

I once argued, in writing, against a fellow who was saying he should not be obligated to re-pay a loan because it was a "credit loan" and not backed by gold bullion stored at Fort Knox.  I never met the guy in person, but he seemed utterly serious in his arguments.  But as pertaining to the law, his arguments were facile, unreasoned, and altogether wrong.  I argued as much to the Utah Court of Appeals.  In its published decision, the Court of Appeals said:

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¶ 2 `"The propriety of a [rule] 12(b)(6) dismissal is a question of law"; therefore, 'we give the trial court's ruling no deference and review it under a correctness standard.'" Sony Elecs., Inc. v. Reber, 2004 UT App 420, ¶ 8, 103 P.3d 186 (quoting St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991)). Brook and Wray filed a convoluted complaint that appears to request that the district court vacate a purported illegal trustee's sale and quiet title to a parcel of property in their names. They also asked for various forms of monetary damages. The gravamen of the complaint appears to allege that Lehman Brothers Bank, FSB issued Brook an invalid loan for a parcel of property in Santaquin, Utah. With these strange and vague allegations, Brook and Wray appear to be attempting to plead the theory known in the credit industry as a "vapor money" or "no money lent" theory, which is commonly pleaded in an effort to avoid legitimate debts. See generally Barnes v. Citigroup, Inc., No. 4:10CV620JCH, 2010 WL 2557508, at *2, 2010 U.S. Dist. LEXIS 59140, at *5-6, (E.D.Mo. June 15, 2010) (discussing the vapor money theory). As in the typical vapor money claim, the complaint alleges that Lehman Brothers Bank, FSB issued Brook an invalid loan because the loan was backed by credit and not lawful money. Accordingly, because the loan was invalid, Brook was not obligated to repay the loan, and therefore, Defendant James Woodall conducted an illegal trustee foreclosure sale.

¶ 3 However, this "`vapor money' theory has no basis in law. It has been squarely addressed and rejected by various courts throughout the country for over twenty years." Frances Kenny Family Trust v. World Sav. Bank FSB, No. C04-03724 WHA, 2005 WL 106792, at *5-6, 2005 U.S. Dist. LEXIS 2403, at *16-17 (N.D.Cal. Jan. 19, 2005) (awarding attorney fees against the plaintiffs and their attorneys for "abuse of the judicial process" despite the plaintiffs' voluntary dismissal of the complaints); see also Demmler v. Bank One NA, No. 2:05-cv-322, 2006 WL 640499, at * 3-4, 2006 U.S. Dist. LEXIS 9409, at H0-11 (S.D.Ohio Mar.  9, 2006) (determining that the no money lent theory pleaded in the case was "utterly frivolous and lacks any legal foundation whatsoever," and that "this patently ludicrous argument. . . . ha[s] been rejected by federal courts across the country"); Nixon v. Individual Head of the St. Joseph Mortg. Co., 615 F.Supp. 898, 899-901 (N.D.Ind. 1985) (dismissing, awarding attorney fees, and sanctioning the plaintiff for bad faith claims pleaded in a complaint that alleged the bank's check, which he used to purchase a house, was an illegal tender); Alcorn v. Washington Mut. Bank, F.A., 111 S.W.3d 264, 266 (Tex.App. 2003) (stating that the "vapor money" theory is a legally erroneous concept apparently based on the misinterpretation of a publication of the Federal Reserve System).

¶ 4 We agree that the vapor money theory as alleged in the complaint has no basis in law. Accordingly, the district court correctly determined that the complaint failed to state a claim for which relief could be granted.

(Emphases added.)

This was the case I had in mind when I wrote that your "if the government rules in favor of the baker, than that is government compelling speech on the buyer" argument would be laughed out of court. 

As you can see, the Court of Appeals was fairly candid in its assessment.  Was the Court "mocking" the appellants here?  No.  It was, instead, being pointed, serious and plain-spoken about some really really bad legal reasoning.  And the terminology it used is not that far removed from my critique of your argument here.

1 hour ago, pogi said:

It is unnecessary to demonstrate that I am wrong.   It doesn't strengthen your argument.  It doesn't weaken mine. 

I have said that, in the end, your argument is really bad.  But I didn't start there.  I have explained at length why it is bad.  I have presented legal authorities and reasoning in this thread.  Repeatedly.  At length.

1 hour ago, pogi said:

It is all an imaginary scenario in your head with an imaginary judge and is based on a faulty assumptions and interpretations of my argument, to be honest.  You don't even understand what I am saying based on your responses.

I think I do.  I think you are upset and feel that I have unduly personalized my criticism of your argument.  I apologize for that.

Your argument, however, remains really bad.

1 hour ago, pogi said:

You are entitled to your opinion, but in regards to the cake, it is your opinion, and not that of SCOTUS as you would have me believe. 

I think I am applying the law more than you are.  I think you are taking a tail-wagging-the-dog approach.  I think you want to see Jack Phillips punished, and are then working backwards and trying to craft a legal argument that could lead to that result.

I don't think that works.  There are principles of law, decisional authorities, that can and ought to be applied to Jack Phillips.  I don't think you are paying much attention to those.  

1 hour ago, pogi said:

The case was not decided on the basis of free speech, despite the defendants argument of free speech.  As much as you make it sound like fact.  There is no legal decision made on the case in regards to free speech despite how solid in stone you make it sound, reasonable minds still disagree on the case. 

Sure.  But that's not what I said.  You made an assertion I found utterly wrong: "Well, if the government rules in favor of the baker, than that is government compelling speech on the buyer."  That is what precipitated my "reasonable minds" comment. That is what I found to be wrong.  Hugely wrong, even.

If the government allows Party B (the baker) to exercise his First Amendment right to not speak things he does not want to speak, then Party B's rights have been protected.  Party A's Free Speech rights, meanwhile, have never been implicated.

Thanks,

-Smac

Edited March 4, 2022 by smac97

[pogi]

45 minutes ago, smac97 said:

Your argument, however, remains really bad.

You are assuming you understand it.  It seems pretty clear to me by your responses and questions that you don't.

[smac97]

10 minutes ago, pogi said:

Quote

Your argument, however, remains really bad.

You are assuming you understand it. 

You are assuming I don't.

I think I do.

"Well, if the government rules in favor of the baker, than that is government compelling speech on the buyer."  

That's a very bad argument.

10 minutes ago, pogi said:

It seems pretty clear to me by your responses and questions that you don't.

As you like.

You are plainly and incontrovertibly wrong.  If the government allows Party B (the baker) to exercise his First Amendment right to not speak things he does not want to speak, then Party B's rights have been protected.  Party A's (the buyer's) Free Speech rights, meanwhile, have never been implicated.

Thanks,

-Smac

[pogi]

3 hours ago, Stormin' Mormon said:

Regardless, that's not the kind of website we are discussing.

We were discussing websites in general:

7 hours ago, Stormin' Mormon said:

Is a website inherently speech with an intended message?

One concern of mine is making too broad a ruling on websites in general, as implied in your question. 

3 hours ago, Stormin' Mormon said:

The website that 303 Creative declined to design was one that WOULD communicate a message: Jeff and Steve got married.  You may think that's a rather uncontroversial statement of fact.  The message may in fact be anodyne, boring, or lacking in social commentary.  But it IS a message; it IS a statement.

Which puts it squarely in the realm of free speech protections, including protections from compelled speech. 

I won't argue that a marriage website doesn't include speech, but I am not convinced that the first amendment will trump discrimination laws in all cases.  I think it is a tenuous argument to suggest that the website designer is objecting to the language and not the people.   If a website designer refuses only black weddings, or Jewish weddings for example, they can try to argue from a first amendment angle, but I don't think they have any hopes of winning.  I don't see why this would be any different.  

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A bakery that refused to provide wedding cakes for Jewish couples would be discriminating based on their religion, even if it said the reason was its objection to “Jewish weddings.” If a business needs to know who the product is for in order to decide whether or not to sell it, that’s an objection to the who, not the what.

When a business open to the public refuses to serve a customer because of who they love, that’s identity-based discrimination, and it’s not protected by the First Amendment.

https://thehill.com/opinion/civil-rights/392110-the-masterpiece-cakeshop-ruling-was-a-victory-for-the-first-amendment

Edited March 4, 2022 by pogi

[pogi]

2 hours ago, smac97 said:

You are assuming I don't.

Well, since I haven't really laid out my argument explaining and defending that statement, I think it is safe to say you don't understand my argument.  No assumption. Nor is my argument based solely on that statement.

2 hours ago, smac97 said:

You are plainly and incontrovertibly wrong. 

Thanks for your opinion based on an incomplete understanding of my argument.

Quote

If the government allows Party B (the baker) to exercise his First Amendment right to not speak things he does not want to speak, then Party B's rights have been protected.  Party A's (the buyer's) Free Speech rights, meanwhile, have never been implicated.

Unfortunately you are just making this stuff up.  The case, once again, was not decided on the basis of free speech.  So you can't tell me my argument sucks based on your big "if". 

Edited March 5, 2022 by pogi

[Amulek]

4 hours ago, pogi said:

What about utility websites like a clock or a notepad, etc.?

I would think that something like a clock website (e.g., here) would be rather lacking in utility should it not communicate anything at all.

And how do such websites come into being to begin with? Somebody has to use their expressive talents to intentionally create them, do they not? Sounds a lot like speech to me.

 

Quote

Correct me if I am wrong but the ruling was specific to "violent video games".

From the first line of the opinion: "California correctly acknowledges that video games qualify for First Amendment protection."

And then, as quoted previously: "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection."

So yes, video games are a medium to which the First Amendment applies - just like books, or movies, or music.

 

Quote

I think generalizing all video games as speech is a mistake. Not all video games communicate ideas or are expressive with social messages with music, dialogue, plot, etc.  Some have no music and are simply math equations you have to figure out, or fitting generic shapes together,  etc.

Do you likewise think that generalizing all books as speech is a mistake? I mean, there are plenty of books without words, but I would still consider those to be speech - even the really bad ones that you might find in the children's section.

 

[Amulek]

1 hour ago, pogi said:

I think it is a tenuous argument to suggest that the website designer is objecting to the language and not the people.   If a website designer refuses only black weddings, or Jewish weddings for example, they can try to argue from a first amendment angle, but I don't think they have any hopes of winning.  I don't see why this would be any different.  

Say you are a web designer who - for personal, moral reasons - finds circumcision to be unethical.

You are approached by a Jewish family who wants you to put together a website celebrating their son's bris.

You don't want to do it, but not because they are Jewish - you would happily create a website for their law firm, or bagel shop, or whatever - you just don't want to have anything to do with celebrating what you consider immoral activity - that's a message you simply don't want to send.

Do you believe you should be allowed to turn down the job?

 

[pogi]

34 minutes ago, Amulek said:

I would think that something like a clock website (e.g., here) would be rather lacking in utility should it not communicate anything at all.

And how do such websites come into being to begin with? Somebody has to use their expressive talents to intentionally create them, do they not? Sounds a lot like speech to me.

Ok so if a digital clock is a form of speech because someone had to use their expressive talents in intentionally create them, I could say the same thing about an analog clock.  Is an analog clock a form of speech?  Seriously, at what point is something not speech?  Can I refuse an analog clock to be sold to a gay married couple, or a black couple, or a Jewish couple because you don't agree with those types of marriages and if it will hang in their home it is therefore forced speech?

34 minutes ago, Amulek said:

From the first line of the opinion: "California correctly acknowledges that video games qualify for First Amendment protection."

And then, as quoted previously: "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection."

So yes, video games are a medium to which the First Amendment applies - just like books, or movies, or music.

It says that video games qualify for protection, they are not guaranteed.  I think it depends on the game, as not all games are as described in your quote. 

34 minutes ago, Amulek said:

Do you likewise think that generalizing all books as speech is a mistake? I mean, there are plenty of books without words, but I would still consider those to be speech - even the really bad ones that you might find in the children's section.

If it is communicating a message, it is speech.  Is a blank journal a book?

 

Edited March 5, 2022 by pogi

[Vanguard]

8 minutes ago, Amulek said:

Say you are a web designer who - for personal, moral reasons - finds circumcision to be unethical.

You are approached by a Jewish family who wants you to put together a website celebrating their son's bris.

You don't want to do it, but not because they are Jewish - you would happily create a website for their law firm, or bagel shop, or whatever - you just don't want to have anything to do with celebrating what you consider immoral activity - that's a message you simply don't want to send.

Do you believe you should be allowed to turn down the job?

 

Very well said. What if we tweaked your scenario to say instead of circumcision, you find women working out of the home to be unethical. You are a web-designer approached by a family who wants you to put together a website celebrating the blessings of a family whose mother and father are working for the homeless community and whose children are right by their side benefiting from the experience. Holding fast to the preeminence of free speech, we would be compelled to say my scenario makes not a wit of difference. If that is your 'speech' then the law should support you from being forced to oblige the consumer's request. Accepting free speech to be preeminent, I guess it boils down to whether or not a service/product is deemed speech of some kind or whether it is - as has been said earlier - simply a widget in which case free speech would not be a legitimate issue. But is that true? If I made glass/cup coasters and found out someone wanted to buy them for an activity that I objected to, would I be within my rights to deny them? And if so, wouldn't anything become then an issue of free speech thereby permitting those with true racial animus to put their prejudices into action in this way? What am I missing here? 

[JustAnAustralian]

15 minutes ago, pogi said:

Can I refuse an analog clock to be sold to a gay married couple, or a black couple, or a Jewish couple because you don't agree with those types of marriages and if it will hang in their home it is therefore forced speech?

Do they want you to custom design a clock celebrating their homosexuality, skin colour, or ethno-religocity? or are they just coming in to buy one off the wall?

[Vanguard]

8 minutes ago, JustAnAustralian said:

Do they want you to custom design a clock celebrating their homosexuality, skin colour, or ethno-religocity? or are they just coming in to buy one off the wall?

No, they want to by a clock from off the wall for a gift to give a gay couple celebrating their 1st anniversary. Does that change anything?

[pogi]

16 minutes ago, JustAnAustralian said:

Do they want you to custom design a clock celebrating their homosexuality, skin colour, or ethno-religocity? or are they just coming in to buy one off the wall?

If context matters with analog clocks, why does it not for matter for website clocks? 

We are talking about a generic website clock available to anyone to use.  So, let’s keep the context equal.  It will be a generic clock that anyone can buy off the wall.

Why is a generic website clock speech (simply because it is a website), but not a generic analog clock?
 

Edited March 5, 2022 by pogi

[Stormin' Mormon]

1 hour ago, pogi said:

I won't argue that a marriage website doesn't include speech, but I am not convinced that the first amendment will trump discrimination laws in all cases.  

I'm not convinced that statutory law takes precedence over constitutional rights. That's kind of the point of a constitutionally enumerated right. 

[pogi]

8 minutes ago, Stormin' Mormon said:

I'm not convinced that statutory law takes precedence over constitutional rights. That's kind of the point of a constitutionally enumerated right. 

The court does not always agree.

https://www.mtsu.edu/first-amendment/article/1207/anti-discrimination-laws

[Stormin' Mormon]

9 minutes ago, pogi said:

The court does not always agree.

https://www.mtsu.edu/first-amendment/article/1207/anti-discrimination-laws

From your link:

Quote

Policies that seek to restrict speech based on content, rather than the context in which the speech occurs, generally do not pass constitutional muster.

Which is what I've been saying for several pages now.

Quote

Were the Boy Scouts to be required to accept Dale as a member, they would be compelled to support a moral position inconsistent with the message, values, and goals of the organization. While a group may be compelled to extend the benefits of membership to an undesired group, it may not be compelled to deliver a message contrary to its actual views. Thus, the New Jersey law infringed on the Boy Scouts’ expressive associational rights in violation of the First Amendment.

Ooh...Interesting.  Another case in favor of striking down laws that compel speech.

 

[pogi]

7 minutes ago, Stormin' Mormon said:

From your link:

Which is what I've been saying for several pages now.

Ooh...Interesting.  Another case in favor of striking down laws that compel speech.

 

I noticed that you are not going to acknowledge the other case.  Ok.  I guess we won’t get anywhere.  Bye  as I said the court doesn’t “always” rule that way.

Edited March 5, 2022 by pogi

[Stormin' Mormon]

Now that Pogi's link has pointed me to Boy Scouts of America v. Dale, I think that case may be more on point with the 303 case than the Wooley v. Maynard case I've been citing all this time.  It uses the term "right to experssive association," which is not a legal term I'm familar with.  But it seems to describe quite nicely the right that 303 is wishing to excercise.  I'm going to have to read up on this case tonight.

From the MTSU summary here (emphasis mine):  https://mtsu.edu/first-amendment/article/61/boy-scouts-of-america-v-dale
 

Quote

 

The Boy Scouts responded that the First Amendment granted the organization the right to expressive association, allowing the Scouts to refuse employment to individuals who violated its moral code, because employing such individuals would impinge on the Scouts’ ability to impart that code to its members....

The Court determined that Dale’s forced inclusion in the Scouts would significantly affect the organization’s right of expressive association. The Court found that groups do not have to associate for the purpose of disseminating a specific message to be entitled to First Amendment protection....

The Court proceeded to apply the compelling interest test, which the Roberts line of cases suggested almost always justified antidiscrimination laws challenged on expressive association grounds. In Dale, by contrast, the Court gave the test short shrift, stating simply that “the state interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association” and leaving no doubt that the test had been repudiated..

Dale, in contrast, held that the expressive association right could be asserted by an organization even though the organization does not associate for the purpose of expressing a particular message, propounds that message only implicitly, and tolerates dissenting views. Moreover, under Dale the courts will skeptically review governments’ claims that their invasions of expressive association rights serve interests sufficiently compelling to justify those invasions.

 

 

Edited March 5, 2022 by Stormin' Mormon

[Stormin' Mormon]

 

6 minutes ago, pogi said:

I noticed that you are not going to acknowledge the other case.  Ok.  I guess we won’t get anywhere.  Bye  as I said the court doesn’t “always” rule that way.

I apologize if I gave the impression of "always."  Elsewhere in this thread, I acknowledged that strict scrutiny applies in such legal reviews. 

[pogi]

5 minutes ago, Stormin' Mormon said:

 

I apologize if I gave the impression of "always."  Elsewhere in this thread, I acknowledged that strict scrutiny applies in such legal reviews. 

Yes.  It is not always as cut and dry as many here make it seem.  Despite what I have heard, the first amendment doesn’t automatically allow for discrimination 

Edited March 5, 2022 by pogi

[Stormin' Mormon]

1 hour ago, pogi said:

Yes.  It is not always as cut and dry as many here make it seem.  Despite what I have heard, the first amendment doesn’t automatically allow for discrimination 

I agree.  These cases are not always cut and dry.  Otherwise they wouldn't make it to the Supreme Court.

That being said, judicial tests tend to put a thumb on the scale in favor of free speech.  Content based laws are presumed unconstitutional unless they can pass a strict scrutiny analysis.  In other words, the burden of proof is on the government to show that they have a compelling interest in regulating the speech, and that they could not have achieved that interest through some other, less restrictive means.

If I were a betting man, I would be doubling down on the free speech side of just about every free speech case that SCOTUS takes up.

Edited March 5, 2022 by Stormin' Mormon