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

[pogi]

50 minutes ago, Stormin' Mormon said:

But I'm not sure that that framing works.  Otherwise, the exercise of ANY right could be construed as denying a right to someone else.  My voting for candidate A could be construed as suppressing your vote for Candidate B.  My purchase of a house in Tucson could be construed as denying your right to buy that house.  

If this argument doesn't work for the buyer for the reason you mentioned, then it shouldn't work for the baker either.  The buyer is just exercising his right of free speech by choosing that baker. They are both equally trying to exercise their right to free speech.  Why should the same rule you mention above not apply in the other direction?  

50 minutes ago, Stormin' Mormon said:

Even if it were a valid framing of the argument, we would be left to choose the lesser of two evils: Would we rather have individuals compelling speech or would we rather have the government doing it?  Generally, laws tend to allow individuals to constrain speech in ways that the government cannot.  It makes sense then that individuals would be allowed to compel speech in ways that the government cannot. 

Well, if the government rules in favor of the baker, than that is government compelling speech on the buyer.  Either way they decide, it is compelling the other person to say something they don't want to say.  In that regard, all things are equal. 

Edited March 2, 2022 by pogi

[smac97]

1 hour ago, pogi said:

Yes I am, I am asking that if it applies to the baker, why not the buyer?

Because the baker is not doing anything to implicate a violation of the buyer's Free Speech rights.

1 hour ago, pogi said:

Quote

Jack Philips is not trying to compel anyone to say anything against their will.  And if he was trying to do that, I would agree that you have a point.

Yes, he is. 

No, he's not.

1 hour ago, pogi said:

Remember that speech is not always verbal.  It can be symbolic - like baking a cake.

I have previously laid out the analytical framework for expressive speech.  You have apparently not read it.  You have also apparently not read Justice Thomas' summary of this issue in his concurring opinion from Masterpiece Cakeshop.

This really isn't a point in dispute, Pogi.  In a situation where Party A asks Party B to say X, and Party B declines, there is no injury to Party A's right to Free Speech.  None.  At all.  You would get laughed out of court if you tried to say this in a legal setting.

Don't take my word for it.  Feel free to ask the other lawyers here.

Thanks,

-Smac

[smac97]

47 minutes ago, pogi said:

Quote

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.

In this case, he has framed the argument that the buyer is trying to force the baker to say something that he doesn't want to say.

No, I have not.  The U.S. Supreme Court did.  I'm just reading the law.

47 minutes ago, pogi said:

Why doesn't this apply to the buyer in this case? 

Because nobody is attempting to compel the buyer to say anything.

If Party A asks Party B to speak X, and if Party B, who disagrees with and does not want to speak X, declines to speak, then Party B has not violated Party A's Free Speech rights under the First Amendment.

Jack Philips is not asking anyone to speak anything against their will.

Thanks,

-Smac

[smac97]

56 minutes ago, Stormin' Mormon said:

I think I get Pogi's argument.  Correct me if I'm wrong.

• Person A denying a service to Person is compelling Person B to say "I am not good enough to receive the services of Person A."

Yes, I think that is his argument.

Except I don't think the concept of "expressive speech" is so infinitely elastic as to stretch over this argument.

56 minutes ago, Stormin' Mormon said:

But I'm not sure that that framing works.  Otherwise, the exercise of ANY right could be construed as denying a right to someone else.  My voting for candidate A could be construed as suppressing your vote for Candidate B.  My purchase of a house in Tucson could be construed as denying your right to buy that house.

Yep.  If tyranny were like a cake recipe, Pogi's thesis would be the flour.  The key ingredient.

56 minutes ago, Stormin' Mormon said:

Even if it were a valid framing of the argument, we would be left to choose the lesser of two evils: Would we rather have individuals compelling speech or would we rather have the government doing it? 

There is, of course, the third evil: compelled speech.

It is hard to keep a straight face and argue that Party A's Free Speech rights are violated when Party B declines to speak what Party A wants him to.

Thanks,

-Smac

[Calm]

1 hour ago, Stormin' Mormon said:

Person A denying a service to Person is compelling Person B to say "I am not good enough to receive the services of Person A."

But I'm not sure that that framing works. 

There is a saying that “silence means consent”.  While it may not be the actual position of the person being silent, it is reasonable to assume that might be the message conveyed, but apparently it is not accepted in English based law.  However our moral system seems to depend a great deal on it…’the only thing necessary for evil to triumph is for good men to do nothing’. (Not from Edmund Burke)

Edited March 3, 2022 by Calm

[smac97]

56 minutes ago, pogi said:

If this argument doesn't work for the buyer for the reason you mentioned, then it shouldn't work for the baker either. 

Party A (the buyer) asks Party B (the baker) to "speak."

Party B declines.

Result: No injury to Party A's First Amendment rights because nobody is constraining his speech, or seeking to compel him to speak.

Now, are Party B's First Amendment rights implicated?  Yes.  Because he is being asked to speak he does not want to speak, and because he faces punishment by the government if he does not speak the things he does not want to speak.  This is straight-up compelled speech.

You are trying really hard to create some sort of parity or symmetry between Party A (asking another person to speak) and Party B (declining to speak words he does not want to speak).  The parity/symmetry is just not there.

56 minutes ago, pogi said:

The buyer is just exercising his right of free speech by choosing that baker.

The First Amendment right to Free Speech does not include the right to compel others to speak things they do not want to speak.  Surely you concede this?

56 minutes ago, pogi said:

They are both equally trying to exercise their right to free speech. 

They are not.  Party B is not asking Party A to speak against his (Party A's) will.

56 minutes ago, pogi said:

Why should the same rule you mention above not apply in the other direction?  

If Party B were attempting to use the force of law to coerce Party A to say things against Party A's will, then you might have an argument.  Otherwise, you don't.

56 minutes ago, pogi said:

Quote

Even if it were a valid framing of the argument, we would be left to choose the lesser of two evils: Would we rather have individuals compelling speech or would we rather have the government doing it?  Generally, laws tend to allow individuals to constrain speech in ways that the government cannot.  It makes sense then that individuals would be allowed to compel speech in ways that the government cannot. 

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

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.

56 minutes ago, pogi said:

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

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

56 minutes ago, pogi said:

In that regard, all things are equal. 

Nope.

Thanks,

-Smac

Edited March 3, 2022 by smac97

[Stormin' Mormon]

1 hour ago, pogi said:

If this argument doesn't work for the buyer for the reason you mentioned, then it shouldn't work for the baker either.  The buyer is just exercising his right of free speech by choosing that baker. They are both equally trying to exercise their right to free speech.  Why should the same rule you mention above not apply in the other direction?  

Well, if the government rules in favor of the baker, than that is government compelling speech on the buyer.  Either way they decide, it is compelling the other person to say something they don't want to say.  In that regard, all things are equal. 

Is there a limiting principle to this interpretation? Are there any actions that do not lead to compelled speech in some way?

If compelled speech is present on both sides of every interaction, then we have to invoke other principles and rights to determine who the law should favor.

Which makes the doctrine of compelled speech a dead letter. 

Which is why I don't think your framing of this issue is valid. It turns everything into a free speech issue (property rights, voting rights, civil rights). And if everything is a free speech issue, then nothing is.

Edited March 3, 2022 by Stormin' Mormon
Spelling

[smac97]

15 minutes ago, Calm said:

There is a saying that “silence means consent”.  

See here:

Quote

Silence means consent proverbial saying, late 14th century; translation of a Latin tag, ‘qui tacet consentire videtur [he who is silent seems to consent]’, said to have been spoken by Thomas More (1478–1535) when asked at his trial why he was silent on being asked to acknowledge the king's supremacy over the Church. The principle is not accepted in modern English law.

And here:

Quote

“A concept learned early in law school is that silence is not acquiescence. This idea appears in California’s jury instructions, CACI 310, which says that if a party does not respond to an offer, then that inaction is not deemed an acceptance, unless the parties understood silence to be acceptance. A related Latin proverb is Qui tacet consentire videtur, ubi loqui debuit ac potuit – He who is silent, when he ought to have spoken and was able to, is taken to agree. As discussed in People v. Clemons, 153 Cal. App. 2d 64, 72 (1957), although the venerable expression ‘silence is consent’ may have ‘some truth’ in certain contexts, ‘there must be and are times when silence is anything but consent.’

It made for a stirring scene in A Man for All Seasons, but 

15 minutes ago, Calm said:

While it may not be the actual position of the person being silent, it is reasonable to assume that might be the message conveyed, but apparently it is not accepted in English based law.

A woman being propositioned for sex.  If she does not verbalize "No" or somethink like it, has she consented?  Nope.

15 minutes ago, Calm said:

However our moral system seems to depend a great deal on it…’the only thing necessary for evil to triumph is for good men to do nothing’. (Not from Edmund Burke)

I think this is where the usually-omitted proviso comes into play:  Qui tacet consentire videtur, ubi loqui debuit ac potuit – He who is silent, when he ought to have spoken and was able to, is taken to agree. 

See also here:

Quote

Crack open any law dictionary worth its salt and you will find the Latin phrase “Qui Tacet Consentire Videtur” or “He who is silent appears to consent.” Do not be fooled – context matters – a pithy Latin phrase is not a general rule of law.

In American Entertainers, L.L.C. v. City of Rocky Mount, 2016 WL 4728077 (September 8, 2016), the operator of a gentleman’s club was cited for violating City law.  After the City threatened to sue the club in 2003, the operator sued the City. The City granted the club a temporary license to operate. In the context of the 2003 lawsuit, the operator had conversations with the City’s attorney and his lawyer sent an email to the City’s attorney asserting that the club did not need a City license to operate.  The City’s attorney did not respond to the email.    “He who is silent appears to consent.” The club dismissed its lawsuit.

In 2014, the City cited the club for violating City law.  The club filed the current lawsuit, contending that the 2003 conversations and email was an agreement to permit the club to operate.

Not unlike driving nails in the coffin, the Court cited established law and dispensed with the consent by silence theory in this context, hammer blow by hammer blow:

• All contracts with a North Carolina city must be in writing;
• Equitable estoppel does not apply to North Carolina cities. (In other words, unless a city council ratifies an unwritten agreement, it is invalid even when a private person relies on oral representations of governmental officials);
• No North Carolina city may be prevented from enforcing its laws even when some officials have encouraged or permitted violation; and
• All North Carolina contracts must contain mutual obligations – you promise me something in exchange for me promising you something. An email sent to a lawyer stating a party’s position is not an exchange of obligations.

Not to be deterred, the plaintiff constructed an innovative argument.  The operator contended that the conversations and email was an “interpretation” of city law binding on the City.  Sounds crazy, right?

But for those knowledgeable of North Carolina land use law the argument makes some sense. North Carolina law provides process to secure an interpretation of local zoning law (and in some cases other local laws) that a city cannot deny, but this process must be followed strictly:

• Every local government must designate a local official to enforce zoning (and other land use laws in some cases). This designated official has the power to render interpretations of local law binding the local government.  Typically, this person is a member of the local government’s Planning and/or Inspections Department.

• An official interpretation rendered by this official must be in writing and parties, including the local government, may appeal the interpretation for review by the North Carolina Courts.

The club’s operator never asked for nor received an interpretation from the official designed to provide interpretations. So, the theory was sound, but there were no facts to support it.

Beware of pithy Latin phrases– the law is more than skin deep.

Thanks,

-Smac

[pogi]

3 hours ago, smac97 said:

No, I have not.  

I feel like I am getting whiplash.  You literally just berated me for not acknowledging your argument about compelled speech.  Color me confused:

Quote

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

Those are your words.  This is what you have been saying for 7 pages now. 

3 hours ago, smac97 said:

The U.S. Supreme Court did.  I'm just reading the law.

That simply is not true smac.  The court's decision was centered around free exercise, you are the one trying to make it about the much more broad issue of free speech, not the court.  The court's decision was centered around perceived anti-religious bias from the state.  

Quote

And finally, though the Court did not discuss this aspect, Phillips’s attorneys (from the religious-right legal powerhouse Alliance Defending Freedom) and the Trump administration made extravagant claims. They suggested that the Court skip the religious-freedom issue altogether and decide the case on pure free-speech grounds. Had it done so, a decision for Phillips would have given constitutional protection to an unknown number of discriminations against LGBT people and couples, and indeed—by the government’s own concession—called into question laws protecting women and racial minorities.

Quote

Instead, the Court decided the case, but on the narrowest grounds imaginable—that the Colorado Civil Rights Commission during its consideration of the case had shown anti-religious bias. The result was a decision that provides almost no guidance for lower courts facing similar cases. “In this case,” Kennedy wrote, “the adjudication concerned a context that may well be different going forward.” Thus, “the outcome of cases like this in other circumstances must await further elaboration in the courts.”

Quote

Jack Phillips claimed the commission’s order violated his rights of free speech and free exercise; Kennedy found him half right. The opinion was written entirely in terms of “free exercise” of religion—a narrower ground than the free-speech argument.

https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/

You continue:

3 hours ago, smac97 said:

I have previously laid out the analytical framework for expressive speech.  You have apparently not read it.  You have also apparently not read Justice Thomas' summary of this issue in his concurring opinion from Masterpiece Cakeshop.

Justice Thomas wrote an opinion that the case should have been decided on free-speech grounds.  But alas, it wasn't.  Several other justices dissented from Justice Thomas's opinion about free-speech. 

 

 

[pogi]

3 hours ago, smac97 said:

Party A (the buyer) asks Party B (the baker) to "speak."

Party B declines.

Result: No injury to Party A's First Amendment rights because nobody is constraining his speech, or seeking to compel him to speak.

Not how I framed it, but I get it, you are in lawyer mode - you are going to spin your narrative and attempt to make the other guy look like an idiot.  Something you are trying VERY hard to do, and in quite a rude and condescending fashion. 

Instead of addressing my argument, you are mis-framing it and spinning a different one completely and being a complete jerk about it.

3 hours ago, smac97 said:

You are trying really hard to create some sort of parity or symmetry between Party A (asking another person to speak) and Party B (declining to speak words he does not want to speak).  The parity/symmetry is just not there.

You are missing the parity and symmetry completely.  I am not framing it like that, YOU are.  If you would stop twisting my words, we might actually get somewhere. 

3 hours ago, smac97 said:

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

3 hours ago, smac97 said:

You are plainly and incontrovertibly wrong.  

3 hours ago, smac97 said:

We are headed into pretty unserious territory here.  LaLa Land, even.  

Hmmm...Instead of speaking respectfully, you are restorting to belittling attacks that are unbecoming of you.  If reasonable minds can't disagree on this, what you implying here smac??? Come on, that is uncalled for!  You are not even addressing my arguments.  You keep spitting out your narrative and frame work and have not yet addressed my points.  You just tell me I am wrong and give YOUR narrative and frame work of person "A" and person "B", but by doing so you are ENTIRELY missing my point.  As in completely blind to what I am saying.   You clearly don't understand what I am saying.  Just a bunch of suggested derogatory laughing at my position and condescending bologna sandwiches.  Not cool. 

3 hours ago, smac97 said:

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.

I get it.  You're being a jerk....I really get it. But, by all means, please continue:

3 hours ago, smac97 said:

Patently false.  Flagrantly incorrect. 

Now I'm being "flagrant?  I am not just incorrect, and have an unreasonable mind, but I am "flagrant"?  Seriously smac? You are clearly passionate about your position, but you are proving to be emotionally overboard here and are being unreasonably offensive and falsely accusatory here. 

What was that you kept saying about "granting a measure of good faith"???  Shesh.  I seemed to have really pressed a button.  

I would attempt to explain my position further, as it is clear from your attacks that you don't understand it, but it seems futile and pointless at this point.  Maybe when you can settle down a little. 

Edited March 3, 2022 by pogi

[Stormin' Mormon]

 

 

25 minutes ago, pogi said:

That simply is not true smac.  The court's decision was centered around free exercise, you are the one trying to make it about the much more broad issue of free speech, not the court. 

 

 

Smac and I have been trying to discuss the 303 case that the Court recently took up in which SCOTUS explicitly stated they were only going to consider the free speech question and not the free exercise question. And yet we keep getting dragged back to wedding cakes and free exercise.

[pogi]

3 minutes ago, Stormin' Mormon said:

 

 

Smac and I have been trying to discuss the 303 case that the Court recently took up in which SCOTUS explicitly stated they were only going to consider the free speech question and not the free exercise question. And yet we keep getting dragged back to wedding cakes and free exercise.

Smac was making the wedding cake issue about free speech specifically, not the court.  You and smac have made no attempt to redirect the discussion back to the webdesign case.  You are both arguing from the position of the baker.  

Edited March 3, 2022 by pogi

[pogi]

9 minutes ago, Stormin' Mormon said:

 

 

Smac and I have been trying to discuss the 303 case that the Court recently took up in which SCOTUS explicitly stated they were only going to consider the free speech question and not the free exercise question. And yet we keep getting dragged back to wedding cakes and free exercise.

In fact a quick review shows that smac was the first one to bring up the cake and make it about that, not me:

On 2/22/2022 at 4:53 PM, smac97 said:

There is no shortage of, say, bespoke wedding cake makers who would be delighted to take money in exchange for making a gay wedding cake.  No need to coerce someone who is resistant to speaking such things when there are so many others who are fine with speaking such things.

Edited March 3, 2022 by pogi

[carbon dioxide]

10 hours ago, pogi said:

Think Rosa Parks.  She didn't sit at the front of the bus because she knew it would make white people happy and result in an immediate positive outcome for her.  That's not what this is about either.  Agree or not with their cause and their reasons, it is not about finding the best immediate service.  It is about fighting for social change.  It is about their freedom of speech.  They want to say something about perceived inequities. They don't want to be forced to tuck their tails between their legs and be forced to say/acknowledge via their inaction that they surrender in submission to the baker in acknowledgment that they are below him/her and don't deserve equal service for the sole reason that they are gay.  It is symbolic. 

Like it or not, forced speech is happening on both sides.  Social protest is an art!  Forcing a gay person to seek service elsewhere simply because they are gay may be perceived as forcing them to say and acknowledge that they are below the baker, and other people who are not gay, and don't deserve his service because he is gay. 

That is fine but I don't want to hear any complaints from the people about the quality of service they got by forcing people to do things they did not want to do.  If someone was to force me to do work I don't want to do, I can promise you the work I would do would be the most borderline work I could give.  If I was a photographer and was forced to take pics at a wedding I did not want to be at, the pics will be garbage. 

[pogi]

 

16 hours ago, Stormin' Mormon said:

Is there a limiting principle to this interpretation? Are there any actions that do not lead to compelled speech in some way?

If compelled speech is present on both sides of every interaction, then we have to invoke other principles and rights to determine who the law should favor.

Which makes the doctrine of compelled speech a dead letter. 

Which is why I don't think your framing of this issue is valid. It turns everything into a free speech issue (property rights, voting rights, civil rights). And if everything is a free speech issue, then nothing is.

You are starting to get my point, if a person can refuse to bake a generic cake for a gay couple on the grounds of free speech, then just about anything can be free-speech.  What are the limiting factors?  I think you two are simply treating it as a legal fact, when it is not. 

No one has yet explained to me what the baker is being forced to say.  No one.  Speech requires a message.  What message is he being forced to speak?  Smac suggests that if it was a generic cake sold to the public, then it is not free speech, but if it is bespoke (as generic as it may be) then it is a free speech issue.  He speaks as if this is fact.  Unfortunately for him, that has yet to be established in this case and seems quite tenuous based on the fact that there is no message being forced upon the baker to speak by the gay couple.  What about the quality of the cake being bespoke makes this about speech?  No one is forcing him to say anything about that customer or his life choices, they just want a cake.  One can do something creative without saying anything specifically.  Where there is no message, there is no speech.  I don't see any forced message in the cake, and where there is no forced message, there is no forced speech. Period. 

In other words, I am simply playing off your framework.  That is the problem.  You guys are the one making free speech a dead letter. and quite meaningless and waters down speech to something that doesn't require a message.  The problem with that is not only does it make compelled speech a dead letter, but it also opens a troubling door for a pretext for discrimination.

Instead of answering the question directly, Smac will undoubtedly send us down the yellow brick road with Elton John, but if you will note, he will never explain what the baker is being forced to say.  He will never tell me what the message is.  He will insist emphatically that it is a case of forced speech, but he cannot say what message the baker is being forced to speak.  Why, because there is no forced message.  There is no forced speech.   I understand that not all speech uses words and can be symbolic, but there MUST be a message (words or not), or it is not speech.  It should be telling that while Jack Philipps argued from a position of free speech, Justice Kennedy refused to make a ruling based on free-speech.

Quote

The result was a decision that provides almost no guidance for lower courts facing similar cases. “In this case,” Kennedy wrote, “the adjudication concerned a context that may well be different going forward.” Thus, “the outcome of cases like this in other circumstances must await further elaboration in the courts.”

https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/

As confident as you all are in your position, I think you guys are making some pretty hefty legal assumptions here that Justice Kennedy himself insists requires "further elaboration in the courts".  Premature conclusions.  But if you are right about it being free speech, then so am I right - and speech can be just about anything.  No message required even.  I don't see any reasonable distinction whatsoever.   

Edited March 3, 2022 by pogi

[Amulek]

19 hours ago, pogi said:

Forcing a gay person to seek service elsewhere simply because they are gay may be perceived as forcing them to say and acknowledge that they are below the baker, and other people who are not gay, and don't deserve his service because he is gay. 

But what if it isn't the customer that is being objected to - what if it is the message that said customer wants the service provider to convey that is objectionable?
 

[pogi]

49 minutes ago, Amulek said:

But what if it isn't the customer that is being objected to - what if it is the message that said customer wants the service provider to convey that is objectionable?
 

And what specific "message" did the customer request in this particular case?

Yes, if there was a clear expressed message the customer specifically requested, or to be written on the cake, that would be a different story. 

Edited March 3, 2022 by pogi

[Vanguard]

46 minutes ago, Amulek said:

But what if it isn't the customer that is being objected to - what if it is the message that said customer wants the service provider to convey that is objectionable?
 

Can you clarify what that message might be? Wikipedia gives a brief summary - "Masterpiece Cakeshop became involved in a similar case in 2018, stemming from an incident in June 2017. The bakery refused to bake Autumn Scardina, a Colorado lawyer, a cake to celebrate her birthday, which would have had a pink interior and blue exterior. Phillips stated later that he refused to bake such a cake based on his Christian beliefs that a person does not get to choose their gender." So is Philipps complaining that he suspects the pink interior, blue exterior cake is a commentary on Scardina's gender? Is this really whittled down to interior/exterior cake colors and that this should be protected too? This is confusing.  

Edited March 3, 2022 by Vanguard

[Stormin' Mormon]

1 hour ago, pogi said:

 

One can do something creative without saying anything specifically.  Where there is no message, there is no speech.  I don't see any forced message in the cake, and where there is no forced message, there is no forced speech. Period. 

 

What about website design?  Is that speech? What are your opinions on the free speech issues involved with the 303 case?

 

 

[Vanguard]

9 minutes ago, Stormin' Mormon said:

What about website design?  Is that speech? What are your opinions on the free speech issues involved with the 303 case?

 

 

Johnny come lately to this exchange. ; ) Could you clarify what the 303 case is?

Edited to add: Duh. I looked at the opening post. ;o

Edited March 3, 2022 by Vanguard

[Amulek]

1 hour ago, pogi said:

And what specific "message" did the customer request in this particular case?

Yes, if there was a clear expressed message the customer specifically asked for, or to be written on the cake, that would be a different story. 

A clear expressed message isn't always a requirement though. As the Supreme Court has held, "our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even "[m]arching, walking or parading" in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message" would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (see Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, citations omitted).

When it comes to expressive conduct, the Supreme Court has recognized numerous forms of art as speech - including, but not limited to, music without words, dance, theater, movies, video games, etc.

The question argued in the Masterpiece case was whether or not the baking and decorating of cakes, particularly wedding cakes, exhibits sufficient characteristics with these other protected forms of expression so as to be considered a protected form of expression itself. In other words: Are wedding cakes artistic expressions or are they just widgets.

Regardless of how one feels about the cake issue (and I think there are reasonable arguments to be made on both sides), the case referenced in the OP, however, is unquestionably about speech - pure speech, in fact. So the question we are are faced with is this: When anti-discrimination laws run into conflict with the speech protections guaranteed by the First Amendment, which one has to give? In my opinion, anti-discrimination laws are what ought to bend here. I'm open to hearing arguments to the contrary though.

 

Edited March 3, 2022 by Amulek

[Amulek]

8 minutes ago, Vanguard said:

Johnny come lately to this exchange. ; ) Could you clarify what the 303 case is?

There's an article talking about it in the OP. Here's another.

The question which will be addressed by the court is as follows: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

 

[Vanguard]

37 minutes ago, Amulek said:

There's an article talking about it in the OP. Here's another.

The question which will be addressed by the court is as follows: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

 

Thanks for that. My layman's angle on this would be to first ask - Do we see a difference to make the difference between the 303 website case and the interior/exterior cake color case? In other words, if there were cause for the website producer to legally claim the protections she is arguing for, do we then have to allow the cake maker to assert the same protections? 

[pogi]

1 hour ago, Stormin' Mormon said:

What about website design?  Is that speech? What are your opinions on the free speech issues involved with the 303 case?

I think it depends on what message the customer is requesting.   Is any verbiage specifically requested?  Is the websites purpose to promote gay marriage, or is it intended to be a historical record of events?  Do people generally get married to promote heterosexual marriage, or do they get married for love and personal/practical purposes?  By printing bespoke yet general wedding announcements, is a person condoning a specific type of matrimony?   Are they being forced to say something about the marriage? The couple?  I don't think that can be demonstrated.  Was my marriage to my wife a promotion of heterosexual marriage?  I certainly didn't look at it that way and was not a message that I thought about when hired someone to design and print bespoke general wedding announcements.  It really depends on the intent and purpose/message requested by the client.  I don't think it would be wise to use a wide brush stroke in judgment here without getting into specifics.   

Edited March 3, 2022 by pogi

[Stormin' Mormon]

23 minutes ago, pogi said:

I think it depends on what message the customer is requesting.   Is any verbiage specifically requested?  Is the websites purpose to promote gay marriage, or is it intended to be a historical record of events?  Do people generally get married to promote heterosexual marriage, or do they get married for love and personal/practical purposes?  By printing bespoke yet general wedding announcements, is a person condoning a specific type of matrimony?   Are they being forced to say something about the marriage? The couple?  I don't think that can be demonstrated.  Was my marriage to my wife a promotion of heterosexual marriage?  I certainly didn't look at it that way and was not a message that I thought about when hired someone to design and print bespoke general wedding announcements.  It really depends on the intent and purpose/message requested by the client.  I don't think it would be wise to use a wide brush stroke in judgment here without getting into specifics.   

  All very good questions.  Thanks.

Generally, if one has to read the CONTENT of a message to determine if constitutional protections apply, then the speech regulation in question is very likely to be unconstitutional.  In other words, the disposition of the case is not going to hinge on what's actually communicated on the website.

For example, a town can pass ordinances relating to the size or positioning of signs (not content-based), but it cannot restrict all but commercial signs (content based). 

In a similar fashion, speech protections that would allow a person to turn down work for a site explicitly celebrating the concept of gay marriage would also need to allow that same professional to refuse to work on a wedding website for a random gay couple. There's no way to distinguish between the two websites without actually reading them.  That gets into content-based restrictions and is a big no-no in first amendment jurisprudence. 

Edited March 3, 2022 by Stormin' Mormon