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

[pogi]

1 hour ago, Amulek said:

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.

I will grant that the message doesn't have to be clear, but there does have to be a message intended - some intended communication of ideas via different kinds of media.  The artist/flag burner/protester/whatever gets to dictate that message via his/her intentions and actions.  In this case, the baker could have intended whatever message he wanted.  No one was forcing a specific message on him.  He didn't have to intentionally communicate anything he didn't want to.  That was entirely up to him.   No one requested or tried to force a message on him. 

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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.

I guess we will see how they decide.  Either way, it all boils down to opinion and personal interpretation - SCOTUS demonstrates this fact with nearly every divided ruling.  I personally think it is a mistake to make a judgment on a case without a client or specific request.  I think it should be decided on a more case-by-case basis as website design is SO broad that it may have FAR reaching unintended consequences to interpret all commissioned website design under one light.  

[Stormin' Mormon]

Random side anecdote:

I serve on my town's Planning and Zoning Commission, and generally, our votes are unanimous.  A few years back, though, we ended up with a tied vote over the issue of content-based sign restrictions in our town code.  There had been a recent SCOTUS case on the topic (can't remember which) and so our Planning Director had made some amendment to the code.  Half the commission shrugged their shoulders and said, if we get sued, we get sued, but let's just keep the old sign codes in place.  I was still fairly new to the commission and nervous about my vote possibly being the deciding factor on a high-profile vote.  But I felt strongly then (as I still do now), about free speech issues, so I screwed my courage to the sticking place and voted for the new codes. 

Edited March 3, 2022 by Stormin' Mormon

[Amulek]

18 minutes ago, Vanguard said:

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?

Yes, I believe the two cases are distinguishable. The 303 Creative case involves an activity which is, at all times, unquestioningly considered to be speech by everyone involved. Whereas, the case about cake baking and decorating may or may not involve speech - you have to do more analysis there, so it's not as cut and dried.

 

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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? 

Yes, but only when the cake maker is engaging in activity which involves speech.

 

[pogi]

52 minutes ago, Stormin' Mormon said:

  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. 

I agree that content is not the issue.  The issue is intention to communicate - “speech”.   The designer or artist gets to decide the message unless a specific message or intention is communicated by the customer - in which case the designer can decide to do the work or not.  
I really don’t see at as any different in that regard from a cake.  It is all design - just a different medium..
 

Edited March 3, 2022 by pogi

[Stormin' Mormon]

14 minutes ago, pogi said:

I agree that content is not the issue.  The issue is intention to communicate - “speech”.   The designer or artist gets to decide the message unless a specific message or intention is communicated by the customer - in which case the designer can decide to do the work or not.  

 

Intent to communicate is irrelevant.  Ownership of the original message is irrelevant.  Stating "Bob and Steve are getting married" is just as much a message as "gay weddings are great." Being compelled to be involved with the delivery of a message in any way is outside the norms of current First Amendment jurisprudence regarding compelled speech.

Take Wooley v Maynard, a SCOTUS case decided in 1977.  The Maynards did not wish to display their state's official motto on their license plate.  They were not the originators of the message. They were not involved in any way in the development of that message.  No one believed that bearing the state motto on a state-issued license plate implied anything about the Maynard's endorsement of that message.  Nevertheless, the court ruled 6-3 in favor of the Maynards on compelled speech grounds.  

How would you differentiate Maynard from 303?

 

[Calm]

1 hour ago, Stormin' Mormon said:

That gets into content-based restrictions and is a big no-no in first amendment jurisprudence. 

Because why?  Seems like content is what matters, it is what makes something a message or not.  Is it to avoid personal biases making judgments about what type of content is allowed?  
 

But wouldn’t that allow porn to be published in magazines meant for children, etc?

Edited March 3, 2022 by Calm

[smac97]

1 minute ago, Calm said:

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That gets into content-based restrictions and is a big no-no in first amendment jurisprudence. 

Because why?  Seems like content is what matters.  

Correct.  The First Amendment is supposed to be a big check on the government's ability to constrain speech.  

1 minute ago, Calm said:

Is it to avoid personal biases making judgments about what type of content is allowed?

It is about maintaining limitations on what the government can do to limit speech.  When the government gets into the business of restricting speech based on content, as opposed to other considerations, then that's bad.  See, e.g., here:

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Content-based laws are presumed unconstitutional

Designation of a law as either content based or content neutral is an important first step in ascertaining whether it violates the First Amendment.

Content-based laws are presumptively unconstitutional and subject to strict scrutiny, the highest form of judicial review, whereas content-neutral laws generally must survive only intermediate scrutiny.

Examples of laws that the Supreme Court has designated as impermissibly content based include:

• a statute criminalizing indecent phone messages, determined in Sable Communications of California v. Federal Communications Commission (1989);
• a law imposing financial burdens on literary works by former felons mentioning past crimes, in Simon and Schuster v. Members of the New York State Crime Victims Board (1991); and 
• a District of Columbia law prohibiting the display of signs critical of foreign governments within a certain distance outside embassies, in Boos v. Barry (1988).

"Government has no power to restrict expression because of its message"

Viewpoint discrimination occurs when a governmental regulation restricts expression based not only on its content, but specifically on the underlying views in the message.

Content-based restrictions limit speech based on its subject matter, while viewpoint-based restrictions limit speech based on ideology and perspective. A law banning all political speeches in a public park would be content based; a law banning only political speeches by members of the Socialist Party would be viewpoint based. In the words of Justice Anthony M. Kennedy in Rosenberger v. Rector and Visitors of the University of Virginia (1995), “Viewpoint discrimination is thus an egregious form of content discrimination.”

Some language from Court opinions indicates that content-based laws are flatly unconstitutional.

In Police Department of Chicago v. Mosley (1972), Justice Thurgood Marshall wrote for the Court that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Some content-based laws have been upheld, such as laws against child pornography

In reality, the Court’s case law establishes that content-based laws can be constitutional if they survive strict scrutiny.

For example, the Court in Burson v. Freeman (1992) upheld a law in Tennessee prohibiting the display of campaign materials within 100 feet of a polling place.

The Court also employs a categorization analysis providing that certain, narrow categories of expression — such as obscenity, child pornography, true threats, and incitement to imminent lawless action — can be prohibited precisely because of their harmful content.

The content-discrimination model remains a vital tool in First Amendment analysis. In the words of Justice Sandra Day O’Connor in City of Ladue v. Gilleo (1994), “no better alternative has yet come to light.”

Thanks,

-Smac

[rongo]

1 hour ago, pogi said:

No one was forcing a specific message on him.  He didn't have to intentionally communicate anything he didn't want to.  That was entirely up to him.   No one requested or tried to force a message on him.   

If I remember correctly, the person suing him is a trans woman who specifically targeted Jack Phillip as a test case. The blue frosting hiding a pink cake was deliberately intended to celebrate his transition. So, I would argue that the message Jack took his cake to mean was the same thing that the customer wanted it to mean. So, if he loses this case, a specific message was forced on him, and he did have to intentionally communicate something he didn't want to. 

[Stormin' Mormon]

13 minutes ago, Calm said:

Because why?  Seems like content is what matters, it is what makes something a message or not.  Is it to avoid personal biases making judgments about what type of content is allowed?  

Smac is correct.  Being barred from content-based speech restrictions makes it more difficult for government to be anything other than neutral with regards to what messages get communicated.  Government favoritism of one message over another is the opposite of free speech.  Saying "King George is the absolute worst" should have exactly as many government restrictions as would saying "I love King George."   

[Amulek]

37 minutes ago, Calm said:

But wouldn’t that allow porn to be published in magazines meant for children, etc?

Obscenity is one of the few categories of speech that is not protected by the First Amendment - though, maybe "afforded only low protection" might be more accurate.

However, there is quite a bit of material of a sexual nature that doesn't meet the legal definition of obscenity. Most people in society - even those who oppose restrictions on content for adults - agree that there is value in shielding minors from this content. As such, most states have taken to creating "indecency" laws which allow for the regulation of content with respect to minors.

It's actually a very confusing and not always coherent area of law - especially when you consider that minors today have access to technology and communication methods which were never dreamed about when many of these laws were first enacted. For example, I'm pretty confident that "sexting" wasn't really on anybody's radar twenty years ago, and nobody was thinking back then that laws designed to prevent child pornography would somehow come back to bite us in the backside.

[Stormin' Mormon]

5 minutes ago, Amulek said:

Obscenity is one of the few categories of speech that is not protected by the First Amendment - though, maybe "afforded only low protection" might be more accurate.

 

Correct.  Content-based restrictions (like obscenity or pornography), must pass a "strict scrutiny" test.  In other words, government has to show that it has a compelling interest in restricting the speech in question, and that there was no other, less restrictive way, to fulfill that interest. 

Edited March 3, 2022 by Stormin' Mormon

[Amulek]

2 hours ago, pogi said:

I will grant that the message doesn't have to be clear, but there does have to be a message intended - some intended communication of ideas via different kinds of media.  The artist/flag burner/protester/whatever gets to dictate that message via his/her intentions and actions.  In this case, the baker could have intended whatever message he wanted.  No one was forcing a specific message on him.  He didn't have to intentionally communicate anything he didn't want to.  That was entirely up to him.   No one requested or tried to force a message on him.

A wedding cake is the iconic centerpiece of the wedding celebration, at least in our culture. And the message associated with the wedding cake is that a marriage has occurred and should be celebrated.

If the government cannot force the baker to say (in words), "I endorse this event," then why should the government be allowed to force the use of his talents to express that same message through his art?

 

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I guess we will see how they decide.  Either way, it all boils down to opinion and personal interpretation - SCOTUS demonstrates this fact with nearly every divided ruling.

I don't think the 303 Creative case will be a divided ruling. With the free exercise questions tabled and it being restricted to the 1A question only, I'm predicting a near unanimous opinion on this one.

 

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I personally think it is a mistake to make a judgment on a case without a client or specific request.  I think it should be decided on a more case-by-case basis as website design is SO broad that it may have FAR reaching unintended consequences to interpret all commissioned website design under one light.  

I disagree. The purpose of drawing a bright line rule here will allow creatives to operate their businesses as they see fit without the risk of being drawn into repeated, expensive, protracted, lawsuits.

 

[smac97]

Meanwhile, my prior questions posed to Pogi last week are still unanswered:

• 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 in 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?

Thanks,

-Smac

Edited March 3, 2022 by smac97

[Vanguard]

46 minutes ago, smac97 said:

Meanwhile, my prior questions posed to Pogi last week are still unanswered:

• 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 in 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?

Thanks,

-Smac

Alright, I'll take a stab at these -

1. If the issue at hand is not about a protected class of citizens (though you bring in black folks & LGBT in #4) but rather a free speech issue alone, then EJ (my kids think Billy Joel is better!) would by definition be discriminating against Republicans.

2. No, he should not be compelled.

3. Eeeesh. This is a hard one. I'm not there yet...

4. This one is closer to the cake shop issue in that IMO a rainbow in and of itself is not necessarily connected at all to the LGBT lifestyle. Is the cake shop actually claiming they won't put rainbows on a cake though rainbows can represent other things having nothing to do with LGBT? If I had entered the cake shop and requested a pink inside/blue outside cake, why would the cake shop deny this? It's hard to accept that because the buyer indicated its purpose, s/he was therefore denied its purchase. Is this issue really about what the buyer reveals? Should the cake shop pursue the issue to get clarity before deciding? You know, "So Vanguard, exactly why do you want a cake with a pink interior/blue exterior? Are you trans-gendered?" That scenario seems out of kilter to me.

5. I'm still stuck on the pink interior/blue exterior scenario. Your example here seems to shift things considerably in that a declaration of such (per your example) leaves no ambiguity. Do you think the cake shop should be allowed not to make a pink interior/blue exterior cake based solely on what they believe its purpose is? There is considerable ambiguity there.

6. See #5.

7. See #5.

Some of my confusion revolves around whether this should be solely a free speech issue and not one that involves protected classes. If that is so, why are so many of your examples including these very classes of people? The exception would be from your 1st question in that political persuasion is not a protected class. I also struggle with this idea that if what otherwise could be considered a neutral expression (pink interior/blue exterior, rainbows), how it now becomes verboten if the cake maker believes it could be misconstrued?

My question -

1. Do you believe the cake maker should be able to not produce a product simply under the auspices of it being against his sensibilities?

Edited March 3, 2022 by Vanguard

[rongo]

6 minutes ago, Vanguard said:

5. I'm still stuck on the pink interior/blue exterior scenario. Your example here seems to shift things considerably in that a declaration of such (per your example) leaves no ambiguity. Do you think the cake shop should be allowed not to make a pink interior/blue exterior cake based solely on what they believe its purpose is? There is considerable ambiguity there.

6. See #5.

7. See #5.

Some of my confusion revolves around whether this should be solely a free speech issue and not one that involves protected classes. If that is so, why are so many of your examples including these very classes of people? The exception would be from your 1st question in that political persuasion is not a protected class. I also struggle with this idea that if what otherwise could be considered a neutral expression (pink interior/blue exterior, rainbows), how it now becomes verboten if the cake maker believes it could be misconstrued?

My question -

1. Do you believe the cake maker should be able to not produce a product simply under the auspices of it being against his sensibilities?

I think people absolutely should be able not to do something simply because they believe doing that would send a certain message. Even if others disagree with them that it wouldn't. It's up to the individual to determine what he thinks he is saying by doing something. If people think others are being disingenuous, have agendas, etc., that is the price of freedom of speech and conscience. Freedom is worth the price. 

[pogi]

3 hours ago, Stormin' Mormon said:

Intent to communicate is irrelevant.

Help me understand this first.  If you can't demonstrate intent to communicate, how can you demonstrate "speech".   If there is no intent to communicate, how can speech be "forced" on anyone?  

[Vanguard]

6 minutes ago, rongo said:

I think people absolutely should be able not to do something simply because they believe doing that would send a certain message. Even if others disagree with them that it wouldn't. It's up to the individual to determine what he thinks he is saying by doing something. If people think others are being disingenuous, have agendas, etc., that is the price of freedom of speech and conscience. Freedom is worth the price. 

Is your answer the same if the cake maker scenario included actually making pink interior/blue exterior cakes for others based solely on the cake maker's belief it had nothing to do with LGBT on those particular occasions?

[Stormin' Mormon]

34 minutes ago, pogi said:

Help me understand this first.  If you can't demonstrate intent to communicate, how can you demonstrate "speech".   If there is no intent to communicate, how can speech be "forced" on anyone?  

Consider the example I gave of Wooley v Maynard?  Did the Maynards intend to communicate "Live Free or Die" by mounting their license plate to their car?  Did anyone else think they were intending to communicate that message? Yet the Court believed that they ought to be protected from being compelled to unintentionally communicate in that way. 

 

Edited to add: In thinking about this some more, I think I may be asking the wrong question about Wooley v Maynard.  The relevant question ought to be: did the State intend to communicate anything by applying their motto their license plates?  They claimed it did not.  Rehnquist in his dissent agreed.  But the court still sided with the Maynards in ruling it compelled speech.

Edited March 3, 2022 by Stormin' Mormon

[rongo]

12 minutes ago, Vanguard said:

Is your answer the same if the cake maker scenario included actually making pink interior/blue exterior cakes for others based solely on the cake maker's belief it had nothing to do with LGBT on those particular occasions?

Yes. It wasn't just his belief, though; the trans woman activist who ordered it told him what it was for. This was yet another "sting" to try to take down Masterpiece. 

I would feel the same way if someone didn't want to make a Mormon-themed cake (or felt that what they were being asked to do was make a Mormon-themed cake). 

[smac97]

47 minutes ago, Vanguard said:

Alright, I'll take a stab at these -

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?  

1. If the issue at hand is not about a protected class of citizens (though you bring in black folks & LGBT in #4) but rather a free speech issue alone, then EJ (my kids think Billy Joel is better!) would by definition be discriminating against Republicans.

I'm not sure protected class makes a difference.  What is it about Party A being in a protected class that gives him the right to compel Party B to speak things he (Party B) does not want to speak?

In any event, my next question, then, is whether such discrimination is socially acceptable:

47 minutes ago, Vanguard said:

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 in that venue)?  

2. No, he should not be compelled.

Agreed.

47 minutes ago, Vanguard said:

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

3. Eeeesh. This is a hard one. I'm not there yet...

Okay.  I think there is not much of a difference in terms of symbolic/expressive speech.

47 minutes ago, Vanguard said:

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?

4. This one is closer to the cake shop issue in that IMO a rainbow in and of itself is not necessarily connected at all to the LGBT lifestyle.

Okay.  How does that matter?  Elton John's music is not necessarily connected at all to the politics of Donald Trump, and yet . . . 

47 minutes ago, Vanguard said:

Is the cake shop actually claiming they won't put rainbows on a cake though rainbows can represent other things having nothing to do with LGBT? 

I think the "messaging" of the cake was never in dispute.  Both sides knew it was intended to convey a celebratory message about a same-sex marriage.

47 minutes ago, Vanguard said:

If I had entered the cake shop and requested a pink inside/blue outside cake, why would the cake shop deny this?

They may not.  But if you enter the shop and request a pink inside/blue outside cake and explain the intended messaging of the cake, then the cake shop might not want to convey that message.

47 minutes ago, Vanguard said:

It's hard to accept that because the buyer indicated its purpose, s/he was therefore denied its purchase.

I'm not sure I understand.  Why is that hard to accept?  If the Trump Campaign contacted Elton John's management team and requested permission to use "Rocket Man" at a rally, can Elton John say "no," regardless of whether the Trump Campaign explains how they want to use his music?

47 minutes ago, Vanguard said:

Is this issue really about what the buyer reveals?

I think it is about whether Jack Philips wants his "speech" to be used in a particular way/venue.  Again, going back to the Trump Campaign's use of music, consider what Dee Snider said:

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“When Donald started running for office, he asked me, he called me. He says, 'Can I use the song?' And he's a buddy. And I said, 'Yeah. Go ahead.' But as the months went on, I heard a litany of his beliefs that I'd never discussed with him,” Dee Snider told CNN. "I finally called him and I said, 'Man, you've gotta stop using the song. People think I'm endorsing you here. I can't get behind a lot of what you're saying.' And that night. He has not used it since.”

And an attorney for Aerosmith:

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"Lawyers for Aerosmith wrote a cease and cease-and-desist letter to the Trump campaign claiming the Republican 'did not have our client's permission to use Dream On' or any of Tyler's other songs and that it 'gives the false impression that he is connected with or endorses Mr. Trump's presidential bid.'"

And representatives of the Pavarotti estate:

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“As members of his immediate family, we would like to recall that the values of brotherhood and solidarity which Luciano Pavarotti expressed throughout the course of his artistic career are entirely incompatible with the world view offered by the candidate Donald Trump."

And Queen:

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"Queen does not want its music associated with any mainstream or political debate in any country. Nor does Queen want ‘We are the Champions’ to be used as an endorsement of Mr. Trump and the political views of the Republican Party."

And Elton John:

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"I’m British. I’ve met Donald Trump, he was very nice to me, it’s nothing personal, his political views are his own, mine are very different, I’m not a Republican in a million years."

AFAICS, Elton John has never written any of his songs with Donald Trump in mind.  He nevertheless refuses to let any of those songs - Elton's speech - be used at Trump's political rallies.  Why?  Because the use of the song gives the impression of endorsement / ratification / celebration of Trump's candidacy.  Elton John does not want his speech used that way.  Elton John therefore refuses to let his music be used in that way.

47 minutes ago, Vanguard said:

Should the cake shop pursue the issue to get clarity before deciding? You know, "So Vanguard, exactly why do you want a cake with a pink interior/blue exterior? Are you trans-gendered?" That scenario seems out of kilter to me.

I don't think the cake shop owner is obligated in any particular way.  He can ask as many or as few questions as he likes.  In the end, though, I don't think he ought to be compelled, under threat of finds/imprisonment, to say something he does not want to say.

47 minutes ago, Vanguard said:

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?  

5. I'm still stuck on the pink interior/blue exterior scenario.

Okay.  I don't think that matters.

47 minutes ago, Vanguard said:

Your example here seems to shift things considerably in that a declaration of such (per your example) leaves no ambiguity.  Do you think the cake shop should be allowed not to make a pink interior/blue exterior cake based solely on what they believe its purpose is? There is considerable ambiguity there.

It seems like ambiguity can be there, or not.  Would everyone who heard EJ's "Rocket Man" at a Trump Rally think of it as EJ endorsing Trump?  Nope.  Why?  Because the use is ambiguous.

Conversely, if Trump asked EJ to come to a rally, give a speech celebrating and specifically endorsing Trump's candidacy, and perform a song, would that be seen as an endorsement?  Yes.  Why?  Because, well, EJ would be saying something like "I endorse Donald Trump, now on your feet while I sing Goodbye, Yellow Brick Road!"

My point, then, is that in either scenario, EJ ought to have the right to sing, or not sing.  To have his songs played, or not played.  Whether the "messaging" of the use of the speech is ambiguous or crystal clear, EJ should still have the right to decide to speak, or to not speak.  And the government should not compel him to not speak if he does not want to.

47 minutes ago, Vanguard said:

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"?

6. See #5.

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?

7. See #5.

Okay.  I see ambiguity in the message to be immaterial to whether or not the government can compel a person, under threat of fine/imprisonment, to speak things he does not want to speak.  Regardless of whether the speech is ambiguous or crystal clear, compelled speech is bad.  That's my position.

47 minutes ago, Vanguard said:

Some of my confusion revolves around whether this should be solely a free speech issue and not one that involves protected classes. If that is so, why are so many of your examples including these very classes of people?

Because I don't think it changes the calculus.  A black person has no more right to compel someone else to speak than a white person.  A gay person has no more right to compel someone else to speak than a straight person.

47 minutes ago, Vanguard said:

The exception would be from your 1st question in that political persuasion is not a protected class.

I don't think that matters.  Party A being in a protected class does not give him the right to compel Party B's speech.

47 minutes ago, Vanguard said:

I also struggle with this idea that if what otherwise could be considered a neutral expression (pink interior/blue exterior, rainbows), how it now becomes verboten if the cake maker believes it could be misconstrued?

Rocket Man came out in 1972, many decades before Donald Trump started campaigning for president.  The song "otherwise could be considered a neutral expression," right?  It has no particular "pro-Trump" message in the lyrics.  And yet EJ says "it now becomes verboten" for Trump to use that song or any of EJ's other songs.  

I think EJ ought to have that right.

47 minutes ago, Vanguard said:

My question -

1. Do you believe the cake maker should be able to not produce a product simply under the auspices of it being against his sensibilities?

My comments pertain to speech.  Whether or not the "product" amounts to some form of "speech" (pure, symbolic/expressive, whatever) matters.  

Thank you for your input.  Very helpful.

Thanks,

-Smac

Edited March 3, 2022 by smac97

[california boy]

19 minutes ago, rongo said:

Yes. It wasn't just his belief, though; the trans woman activist who ordered it told him what it was for. This was yet another "sting" to try to take down Masterpiece. 

I would feel the same way if someone didn't want to make a Mormon-themed cake (or felt that what they were being asked to do was make a Mormon-themed cake). 

What if a straight Mormon couple orders a wedding cake.  Could they be discriminated against just because they were Mormon even if there was no way to identify the cake as being a "Mormon" cake?

[pogi]

1 hour ago, smac97 said:

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?  

It is my understanding that dozens and dozens of music artists have tried to sue Trump over free speech issues for using their music at his rallies against their will.  They all lost.  

1 hour ago, smac97 said:

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 in that venue)?  

 A live performance commissioned for the explicit purpose of promoting a political candidate is a matter of free speech.

1 hour ago, smac97 said:

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

Elton John can't refuse his purchased music from being used in any venue.  In that specific way, I agree it is similar to Materspiece Cakeshop.  If Elton John can't refuse a CD purchased from being played at an event, neither should a cake be refused from being used at an event.   

1 hour ago, smac97 said:

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?

If the baker refused the cake because of the sexual orientation of the person receiving the gift, yes, that is discrimination.  

Quote

 

At bottom, the bakery’s “First Amendment” defense is really a quarrel with this basic conclusion. It insists it didn’t discriminate against Dave and Charlie at all because, it says, it objects to events (the weddings of same-sex couples), not people (the same-sex couples themselves). That’s a distinction without a difference.

 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

 

 

1 hour ago, smac97 said:

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?  

No. But this has nothing to do with anything relevant. 

1 hour ago, smac97 said:

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"?

No. 

1 hour ago, smac97 said:

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?

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

1 hour ago, smac97 said:

9. Are you advocating compelled speech?

 Nope.  Your asking demonstrates that you don't understand where I am coming from, and therefore your previous accusations and insults were undeserved.  If you respond with further bullying insults, I will not respond to you any more. 

[Stormin' Mormon]

7 minutes ago, california boy said:

What if a straight Mormon couple orders a wedding cake.  Could they be discriminated against just because they were Mormon even if there was no way to identify the cake as being a "Mormon" cake?

I think a better parallel would be the baker refusing the Mormon couple because they were getting married in an LDS temple.  These cake cases hinge on the character of the event, not on the identity of the client.  Even though the vast majority of potential clients for the event in question may share an identity. 

If the baker believes that weddings are about family coming together and celebrating, and believes that LDS temple sealings divide families by keeping out certain family members...

Then yeah, I would be fine with them for refusing on that basis.

But if they refused the service because of the client's identity as Mormons, that's a different story and not at all parallel to the cake cases we can't help discussing.

Edited March 4, 2022 by Stormin' Mormon

[Calm]

1 hour ago, Vanguard said:

Eeeesh. This is a hard one. I'm not there yet...

One possible argument is that Elton John himself is identified with his music while in most cases if Phillips was attending the wedding, few guests would know that the cake was made by him.  There is not such a tight association in the public’s eye with such products usually as there is with celebrity artists…however, the potential to be recognized or not probably should not be a standard used unless we want to have celebrities become a protected class. 

Edited March 4, 2022 by Calm

[pogi]

59 minutes ago, Stormin' Mormon said:

Consider the example I gave of Wooley v Maynard?  Did the Maynards intend to communicate "Live Free or Die" by mounting their license plate to their car?  Did anyone else think they were intending to communicate that message? Yet the Court believed that they ought to be protected from being compelled to unintentionally communicate in that way. 

 

Edited to add: In thinking about this some more, I think I may be asking the wrong question about Wooley v Maynard.  The relevant question ought to be: did the State intend to communicate anything by applying their motto their license plates?  They claimed it did not.  Rehnquist in his dissent agreed.  But the court still sided with the Maynards in ruling it compelled speech.

Let me get this straight, the state actually claimed that they didn’t intend to communicate anything by their “motto”?  Nothing?  They just randomly selected arbitrary words in no particular order, and not to convey a message or meaning?  What is a “motto” if not a message?  And Rehnquist agreed???  There must be something your not including here, right?

Do you agree?  

Did the other justices agree?  Was the case decided based on the understanding that no communication was intended?  That is like claiming that no communication is intended by the words I write on this board.  It seems an absurd claim.

If no intent to communicate is required, then “speech“ is no longer “speech”.

Edited March 4, 2022 by pogi