Calm Posted March 4, 2022 Posted March 4, 2022 35 minutes ago, pogi said: Elton John can't refuse a CD purchased from being played at an event, Nitpicking question…CDs are sold for private use, correct? Wouldn’t it be leasing the right to use music at a public event?
Vanguard Posted March 4, 2022 Posted March 4, 2022 1 hour ago, smac97 said: 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: Agreed. Okay. I think there is not much of a difference in terms of symbolic/expressive speech. Okay. How does that matter? Elton John's music is not necessarily connected at all to the politics of Donald Trump, and yet . . . 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. 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. 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? 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: And an attorney for Aerosmith: And representatives of the Pavarotti estate: And Queen: And Elton John: 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. 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. Okay. I don't think that matters. 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. 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. 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. 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. 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. 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 Thanks for your replies and your patience. : ) I think I'm getting your position that non-restricted speech in these instances trumps other considerations. A couple of questions - 1. Should the law have anything to say about whether the cake maker is consistent with his position about not making pink interior/blue exterior cake for some but making them for others all under the auspices of allowing him to practice his 'speech' freely? 2. Would your position shift if you knew the cake maker denied blacks a rainbow cake regardless of the cake's purpose but made them for whites for any reason again, regardless of the cake's purpose?
pogi Posted March 4, 2022 Posted March 4, 2022 (edited) 11 minutes ago, Calm said: Nitpicking question…CDs are sold for private use, correct? Wouldn’t it be leasing the right to use music at a public event? Yes, it has to be licensed, but can still be played from a CD. Edited March 4, 2022 by pogi 1
Stormin' Mormon Posted March 4, 2022 Posted March 4, 2022 (edited) 30 minutes ago, pogi said: 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”. Having a motto communicates something, yes. But the state claimed that requiring cars to carry that motto wasn't meant to communicate anything other than: this car is registered in New Hampshire. Rehnquist agreed. Six other justices did not. Edited to add: the Maynards believed that having the state's motto on their license plate communicated something about their own priorities with regards to living free vs dying. The state claimed that displaying the motto implied nothing on behalf of the one displaying it. Edited March 4, 2022 by Stormin' Mormon
pogi Posted March 4, 2022 Posted March 4, 2022 2 minutes ago, Stormin' Mormon said: Having a motto communicates something, yes. Bit the state claimed that requiring cars to carry that motto wasn't meant to communicate anything other than: this car is registered in New Hampshire. Rehnquist agreed. Six other justices did not. That changes things completely. The motto had an intended message (regardless of why the state put it on the plates) and is a form of speech. The same hasn’t been established with baked goods for good reason. There may be no intended message, like a motto. You can’t require someone to display an intended message they disagree with. That is compelled speech. No parallels that I can see with the cake case where no apparent message was intended with the cake.
Stormin' Mormon Posted March 4, 2022 Posted March 4, 2022 (edited) @pogiThis is a pretty good summary of the Wooley v. Maynard https://www.mtsu.edu/first-amendment/article/228/wooley-v-maynard The state argued that inclusion of the motto on license plates helped to identify vehicles and foster state pride. That is, it was not promoting an idealogical message about the value of living free. Which is an interesting angle. They intended one message (yay New Hampshire!) but the people compelled to propagate the message felt like it was a different message entirely. The intent of the message originator is irrelevant. Like I said earlier. Edited March 4, 2022 by Stormin' Mormon
Stormin' Mormon Posted March 4, 2022 Posted March 4, 2022 2 minutes ago, pogi said: That changes things completely. The motto had an intended message (regardless of why the state put it on the plates) and is a form of speech. The same hasn’t been established with baked goods for good reason. There may be no intended message, like a motto. You can’t require someone to display an intended message they disagree with. That is compelled speech. No parallels that I can see with the cake case where no apparent message was intended with the cake. We're not talking about baked goods, you and I. Others on this thread are. I thought we had moved back to discussing the actual issues of the 303 case.
pogi Posted March 4, 2022 Posted March 4, 2022 6 minutes ago, Stormin' Mormon said: We're not talking about baked goods, you and I. Others on this thread are. I thought we had moved back to discussing the actual issues of the 303 case. Sorry, they all start blending together. Either way, I still hold that intended message or communication must be established for speech.
rongo Posted March 4, 2022 Posted March 4, 2022 1 hour 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? Yes, they could, if the maker knew they were Mormon. If that happened to me, I wouldn't want it from them, anyway. I would go somewhere else. I really don't get trying to force people to make something they are against making (for whatever reason). I wouldn't go around trying to entrap people with constant "test cases." I would simply go to someone who wanted my business and didn't disrespect me.
Stormin' Mormon Posted March 4, 2022 Posted March 4, 2022 (edited) 52 minutes ago, pogi said: Sorry, they all start blending together. Either way, I still hold that intended message or communication must be established for speech. I think I've gotten a little lost in the argument myself. I'm not entirely sure whose intent we are talking about. The client's? The professional's? The client asks a professional to create a website expressing Message A. The professional believes that Message A also implies Message B, and she'd rather not be involved with conveying Message B. The client does not believe that Message A implies Message B, and has no intent to communicate Message B. If the law compels the professional to design the web site for Message A, is it compelling her to speak Message B as well? Whose intent about the message determines what messages are or are not being conveyed? If I'm understanding you correctly, you are saying it's the client's intent. Since the client does not intend Message B, then the professional is not conveying Message B, and therefore there is no compelled speech? If that understanding is correct, then I am intending (heh!) to counter that with the example of Wooley v Maynard, where the state intended to convey Message A (Yay New Hampshire), but the Maynards believed that conveying Message A also compelled them to speak Message B (I'd rather die than live unfree). The state had no intent of conveying Message B, but the Court still ruled that the Maynards were being compelled to convey it. Edited March 4, 2022 by Stormin' Mormon
pogi Posted March 4, 2022 Posted March 4, 2022 (edited) 14 hours ago, Stormin' Mormon said: I think I've gotten a little lost in the argument myself. I'm not entirely sure whose intent we are talking about. The client's? The professional's? The client asks a professional to create a website expressing Message A. The professional believes that Message A also implies Message B, and she'd rather not be involved with conveying Message B. The client does not believe that Message A implies Message B, and has no intent to communicate Message B. If the law compels the professional to design the web site for Message A, is it compelling her to speak Message B as well? Whose intent about the message determines what messages are or are not being conveyed? If I'm understanding you correctly, you are saying it's the client's intent. Since the client does not intend Message B, then the professional is not conveying Message B, and therefore there is no compelled speech? If that understanding is correct, then I am intending (heh!) to counter that with the example of Wooley v Maynard, where the state intended to convey Message A (Yay New Hampshire), but the Maynards believed that conveying Message A also compelled them to speak Message B (I'd rather die than live unfree). The state had no intent of conveying Message B, but the Court still ruled that the Maynards were being compelled to convey it. Yes, I think you understand where I am coming from. Where there is no intent to communicate, there can be no forced speech. In the Wooley v Maynard case, it has not been demonstrated to me that the case was decided with the understanding that the state did not intend to communicate the motto by placing the motto on the license plate. You have only shown that 1 Justice agreed with the state in a dissent (which tells me something). I highly doubt that the other Justices agreed, hence the verdict. Content does and should matter to some degree in deciding what is speech. A cake vs a motto vs a website, for example. It would be nearly impossible to argue that a motto is not speech, despite the intent the state had in its use, the motto itself is inherently speech that with an intended message. Edited March 4, 2022 by pogi 1
Amulek Posted March 4, 2022 Posted March 4, 2022 (edited) 17 hours ago, Calm said: Nitpicking question…CDs are sold for private use, correct? Wouldn’t it be leasing the right to use music at a public event? Politicians typically secure blanket licensing through BMI and ASCAP which grants them the legal right to play most music at their events. Every now and then, however, a musician will discover that their music is being played by a particular candidate and decide to make a stink about it - even if the proper licensing was secured. They'll generally threaten to sue based on trademark infringement or something like it. Since most candidates won't bother to fight over it, as it would only distract from their messaging, they will just settle or stop using the complained about song - which effectively results what you might call a 'virtue signalers veto.' Edited March 4, 2022 by Amulek 1
Stormin' Mormon Posted March 4, 2022 Posted March 4, 2022 39 minutes ago, pogi said: It would be nearly impossible to argue that a motto is not speech, despite the intent the state had in its use, the motto itself is inherently speech that with an intended message. Is a website inherently speech with an intended message?
smac97 Posted March 4, 2022 Author Posted March 4, 2022 16 hours ago, Stormin' Mormon said: Quote 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. That's an interesting one. 16 hours ago, Stormin' Mormon said: 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. I think I agree. 16 hours ago, Stormin' Mormon said: 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. I think the focus of "compelled speech" analysis is the message the baker is being asked to convey. This is why I like the Elton John example. Thanks, -Smac
pogi Posted March 4, 2022 Posted March 4, 2022 (edited) 36 minutes ago, Stormin' Mormon said: Is a website inherently speech with an intended message? I guess that is what they are going to determine in this case. Websites are so extremely broad in content that I think it is unwise to make a judgment across the board on this one. Websites can be just for gaming with no intended communication, for example. It can be for documentation of events, like weddings. Or it can be for the purpose of communicating ideas. The content and purpose of websites are as vast and diverse as life is. Too broad to be able to lump it all together into either speech or not speech. Edited March 4, 2022 by pogi 1
Stormin' Mormon Posted March 4, 2022 Posted March 4, 2022 13 minutes ago, pogi said: Websites are so extremely broad in content that I think it is unwise to make a judgment across the board on this one. Websites can be just for gaming with no intended communication, for example. It can be for documentation of events, like weddings. Or it can be for the purpose of communicating ideas. The content and purpose of websites are as vast and diverse as life is. Too broad to be able to lump it all together into either speech or not speech. Which, I guess, is the crux of our differences. I think all of those examples are speech, though the gaming example is a close call. I'd have to give some thought as to the best way to defend the notion that a gaming website has 1A protections. But your idea that the documentation of events is not speech is a dangerous notion. My mission journal is a documentation of events, and is most definitely speech. The history text books I used in college are documentations of events and are most definitely speech. Most newspaper articles are documentation of events and are most definitely speech. If some documentation of events is worthy of 1A protections and some are not, and the distinction is based on the content, then we are in the territory of content-based speech regulation. Not a good place to be finding ourselves.
smac97 Posted March 4, 2022 Author Posted March 4, 2022 (edited) 16 hours ago, Calm said: 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. They might. Or they might ask who made it. And Jack Phillips would certainly know. If Party A asks Party B to come to his (Party A's) office and, with nobody else around, speak words Party B does not want to speak, should he (Party B) be compelled, under threat of fine/imprisonment, to do so anyway? If the issue is compelled speech, then how many people are in attendance, what they subjectively understand the message to be, etc., do not matter. If Party B does not want to speak, then it is his right to decline. 16 hours ago, Calm said: 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. I don't think "protected class" matters. First, let's review what these classes are: Quote What are the Federally Protected Classes? According to federal law, especially since the enactment of the Civil Rights Act in 1964, there are 10 classes or categories of people that are legally protected from discrimination. These classes consist of the following groupings: Race Age Color Religion/faith Sex National origin or ancestry Disability Genetic information Citizenship Veteran status Apart from federally protected classes, state laws may define additional protected classes, such as: Marital status Arrest and court record It should be noted that the US Equal Employment Opportunity Commission (EEOC) groups discrimination types into 12 categories, which do not exactly correspond with the federally protected classes. How does Party A being in a protected class operate to allow him to compel Party B to speak things he (Party B) does not want to speak? To be sure, there are circumstances under which a law regulating speech could, in practice, result in compelled speech, including "symbolic" speech. See here: Quote Examples currently in litigation[edit] Compelling Amazon's Whole Foods to, per Amazon's filing, "favor certain expressions of political speech over others in its retail grocery stores."[16] Examples supported by law[edit] Requiring a cable system to carry local stations – Turner Broadcasting v. FCC (1994) Mandatory university fees that support groups with which other students disagree – Board of Regents of the University of Wisconsin System v. Southworth (2000) Mandatory fees on agricultural products to support advertising – Johanns v. Livestock Marketing Association (2005) Subpoenas to companies compelling testimony that may be self-incriminatory[17] Filing a tax return[17] Warnings on alcohol and tobacco products[17] Examples not supported by law[edit] Saluting the flag or reciting the Pledge of Allegiance – West Virginia State Board of Education v. Barnette (1943) Requiring a newspaper to publish an advertisement – Miami Herald v. Tornillo (1974) School attendance past the eighth grade – Wisconsin v. Yoder (1972) Motto on license plate – Wooley v. Maynard (1977)[18] Compelled self-incrimination by an individual – Fifth Amendment (1789) Certain disclosures by organizations that offer limited services to pregnant women National Institute of Family and Life Advocates v. Becerra (2018)[19] Government speech[edit] Main article: Government speech A government of, by, and for the people also speaks on behalf of its people. The government is not required to express views held by groups in the population. A state may choose not to offer a license plate with a particular message – Walker v. Texas Division, Sons of Confederate Veterans (2015)[20] A city may accept a donation of statue from one religious group and refuse to accept one from another – Pleasant Grove City v. Summum (2009) The "Whole Foods" case above is interesting: Quote Whole Foods says its First Amendment rights will be violated if it's forced to allow employees to wear Black Lives Matter insignia The National Labor Relations Board wants Whole Foods to reverse a ban on workers wearing BLM masks. In a court filing in mid-December, Whole Foods responded to claims that such a ban is illegal. Whole Foods claimed in a court filing that the US was attempting to violate its constitutional rights by forcing it to allow its employees to wear Black Lives Matter insignia on the job. Lawyers for the Amazon-owned grocery chain made the claim in a December 17 filing responding to the National Labor Relations Board's claims that Whole Foods illegally barred employees from wearing Black Lives Matter masks at work. The NLRB's argument is apparently based on the National Labor Relations Act (NLRA). See here: Quote Concerted activity is undertaken jointly by employees for the purpose of union or organization, collective bargaining, or other mutual aid or protection. Such activities frequently are "protected" under federal and state labor laws. The National Labor Relations Act (NLRA) protects individuals engaged in not just "unions," but also "concerted activities" for their mutual aid and protection. Section 7 of the NLRA states: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities . . . . " Protected concerted activity sometimes includes employee conduct that has nothing to do with unions directly, as when employees act together to complain about their work places and their jobs. For instance, employees who get together and complain to management about their pay or benefits are engaged in concerted activity protected by Section 7 of the Act. "The term 'concerted activity' is not defined in the Act. Courts have interpreted concerted activity in reference to Congress' intent to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment. However, the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity is unclear and subject to interpretation in court based on the facts in each case. So "concerted activity" could, according to the NLRB, include wearing clothing/attire with particular messaging about Black Lives Matter. See here: Quote The NLRB claims Whole Foods was in violation of federal labor law, under which workers have the right to engage in "concerted activities for their mutual aid and protection," and participate in collective action tied to issues in the workplace. According to the filing, Whole Foods also illegally participated in retaliatory behavior against employees who wore the apparel, including allegedly sending some staffers home without pay and firing others. Workers in 10 states said they faced punitive action from the company. "Issues of racial harassment and discrimination are central to employees' working conditions, and the National Labor Relations Act protects employees' right to advocate for change," Jill Coffman, the NLRB regional director in San Francisco, said in a statement provided to Insider. "Through this complaint, we seek to enforce the act and protect workers' rights to speak up about these important issues." Back to the other article: Quote In the filing, seen by Insider, Whole Foods accused the NLRB's general counsel, Jennifer Abruzzo, of attempting to violate the company's First Amendment rights by trying to "compel" speech. "By singling out the phrase 'Black Lives Matter' the General Counsel is impermissibly favoring, and requiring that WFM favor, certain expressions of political speech over others in its retail grocery stores," the filing said, referring to Whole Foods Market. "The General Counsel seeks to compel employer speech by WFM in violation of the WFM's rights under the First Amendment to the United States Constitution, and enforcement of any Order from the Board to compel such speech would violate the Constitution," the filing said. That's a fair point. The NLRB will likely need to now argue that all employees everywhere are entitled to wear "symbolic" clothing/attire about pretty much any topic under the sun, as long as the topic can be characterized as "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Quote In a statement to Insider, a spokesperson for Whole Foods said its dress-code policy was designed "to ensure we are giving Team Members a workplace and customers a shopping experience focused entirely on excellent service and high-quality food." "We do not believe we should compromise that experience by introducing any messages on uniforms, regardless of the content, that shift the focus away from our mission," they said. In July 2020, a group of employees sued Whole Foods, claiming the company forbade them from wearing Black Lives Matter masks at work and threatened them with termination if they did. The lawsuit said that employees had "commonly worn Pride flags in support of their LGBTQ+ coworkers without being disciplined by Whole Foods" and that the company's "selective enforcement" of its dress code "constitutes unlawful discrimination." Huh. The practical effect of this may be that companies like Whole Foods will end up squelching the wearing of "Pride flags" and such so as to avoid litigation. Or not. There is no principle of law of which I am aware that says that a private party, having authorized "Speech X," is therefore obligated to authorize every other form of speech imaginable. For example, what if some Whole Foods employees wanted to wear "Marriage = Man + Woman" pins / armbands / attire while at work? Should Whole Foods be obligated to allow employees to wear such things? I think . . . not. That would be compelled speech. I think we may want to go back to re-visiting the Spence and Hurley and Johnson tests for "symbolic speech." See here: Quote Spence v. Washington Main article: Spence v. Washington A college student had hung a U.S. flag on his window, upside down and adorned with peace signs, in May 1970 as to protest the government's actions in the invasion of Cambodia and the Kent State shootings. He was arrested and convicted under a Washington state statute that barred "improper use" of the flag, including adorning it with decorations. The Supreme Court ruled per curium that the statute was unconstitutional as it did not consider the intent of speech of displaying the flag. In the opinion, the Court devised a two-prong test to determine if actions can qualify for First Amendment protections: "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.". This doctrine became known as the Spence test.[8] Texas v. Johnson Main article: Texas v. Johnson In 1984, during a protest against the policies of the Reagan administration in Dallas, Texas, Gregory Lee Johnson doused an American flag that was given to him by a fellow demonstrator with kerosene and set it alight while those around him chanted "America the red, white and blue, we spit on you." He was later arrested and convicted on a flag desecration law in Texas, and sentenced to one year in prison and a $2,000 fine. The court ruled 5 to 4 in favor of Johnson. Building upon Spence, Justice Brennan wrote that because such other actions in relation to the flag (such as saluting, and displaying) are considered to be a form of expression, so must too the burning be, and that Johnson's protest was "'Sufficiently imbued with elements of communication' to implicate the First Amendment." He also explained that the relevance of the O'Brien test is limited "in which 'the governmental interest is unrelated to the suppression of free expression'", as the Texas law in question had its interest in preventing any violent reaction that may spring from those witnessing the burning of the flag. This case helped solidify the condition that any law that inhibits freedom of speech must have an important and compelling interest to do so.[6] Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston Main article: Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston In 1992, an LGBT group was refused to allow to participate in Boston's parade in celebration of St. Patrick's Day and Evacuation Day by the parade organizers, who said the group's identity did not fit the theme of the parade. The Supreme Court unanimously ruled in favor of the organizers, that the message they wanted to convey was expressive speech and protected by the First Amendment, and thus could deny the LGBT group from participation. Justice David Souter wrote in the opinion that the "particularized message" from Spence was too limited, and that 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."[9] Hurley's conflict with Spence and Johnson created a circuit split on evaluating symbolic speech for constitutional protection.[9] It looks like we may end up with a case that addresses these three cases, but then establishes a new standard that either harmonizes them or else creates a new standard to determine if and how and when symbolic speech qualifies for First Amendment protections. Thanks, -Smac Edited March 4, 2022 by smac97
pogi Posted March 4, 2022 Posted March 4, 2022 (edited) 47 minutes ago, Stormin' Mormon said: Which, I guess, is the crux of our differences. I think all of those examples are speech, though the gaming example is a close call. I'd have to give some thought as to the best way to defend the notion that a gaming website has 1A protections. But your idea that the documentation of events is not speech is a dangerous notion. My mission journal is a documentation of events, and is most definitely speech. The history text books I used in college are documentations of events and are most definitely speech. Most newspaper articles are documentation of events and are most definitely speech. If some documentation of events is worthy of 1A protections and some are not, and the distinction is based on the content, then we are in the territory of content-based speech regulation. Not a good place to be finding ourselves. As I've noted previously, I think content does have to matter to some degree. Otherwise there is no way to judge what is speech and what is not speech - a cake vs a motto, vs you name it. Some cakes could be classified as speech, other cakes may not be. Some license plates me be classified as speech, some may not be (depending on content). Think of websites like license plates, depending on the content it may or may not be speech. There are endless examples of websites that probably are not speech. A website to draw with your finger. There are tons of websites that are just blank slates for the user to create stuff in - in other words, the speech is created by the user, not the website. Some websites allow the user to use global satellites to view different parts of the earth. Some websites are literally just a calculator, or a clock, or notepad, or other basic general utility. Why do these things suddenly become speech because it is digital instead of analog? Makes no sense. Edited March 4, 2022 by pogi 1
smac97 Posted March 4, 2022 Author Posted March 4, 2022 16 hours ago, Vanguard said: Thanks for your replies and your patience. : ) I think I'm getting your position that non-restricted speech in these instances trumps other considerations. A couple of questions - 1. Should the law have anything to say about whether the cake maker is consistent with his position about not making pink interior/blue exterior cake for some but making them for others all under the auspices of allowing him to practice his 'speech' freely? I don't think so. There is nothing in First Amendment jurisprudence that limits a person's Free Speech rights based on "consistency." If I want to speak X today, I should have the right to speak it. If I change my mind tomorrow and want to not speak X, I should have that right too. If I want to "speak" through a bespoke pink interior/blue exterior cake because I feel it symbolizes something with which I agree, then I should have that right. If I do not want to "speak" through a bespoke pink interior/blue exterior cake because I feel it symbolizes something with which I do not agree, then I should have that right. Again, let's go back to Elton John. Is he allowed to authorize use of "Candle In The Wind" for use in a documentary memorializing Diana Spencer, but then deny the use of the exact same song for use in, say, a muckraking documentary that seeks to disparage Diana? Same song, but different uses and contexts and "messaging," which the speaker (EJ) may either approve or disapprove. Either way, I think he ought to have the right to speak, or not speak. Can we not therefore say the same about a bespoke "pink interior/blue exterior cake?" 16 hours ago, Vanguard said: 2. Would your position shift if you knew the cake maker denied blacks a rainbow cake regardless of the cake's purpose but made them for whites for any reason again, regardless of the cake's purpose? That would depend, I suppose, I whether the rainbox cake constitutes "speech." "Regardless of the cake's purpose" would seem to lessen the likelihood of it being "speech." In the absence of a Free Speech issue, then, I would think the relevant anti-discrimination law would carry the day. There does need to be a limiting principle. "Free Speech" cannot be arbitrarily invoked, particularly when attempting to circumvent anti-discrimination statutes (which, broadly speaking, I support). Thanks, -Smac
smac97 Posted March 4, 2022 Author Posted March 4, 2022 (edited) 16 hours ago, pogi said: Quote Having a motto communicates something, yes. Bit the state claimed that requiring cars to carry that motto wasn't meant to communicate anything other than: this car is registered in New Hampshire. Rehnquist agreed. Six other justices did not. That changes things completely. Not really. 16 hours ago, pogi said: The motto had an intended message (regardless of why the state put it on the plates) and is a form of speech. Pretty much. 16 hours ago, pogi said: The same hasn’t been established with baked goods for good reason. We're speaking of bespoke wedding cakes. "Baked goods" is a far larger category of items. 16 hours ago, pogi said: There may be no intended message, like a motto. You can’t require someone to display an intended message they disagree with. That is compelled speech. Agreed. 16 hours ago, pogi said: No parallels that I can see with the cake case where no apparent message was intended with the cake. Bespoke wedding cakes carry "no apparent message?" Are you sure? As Amulek put it: Quote 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? That's a pretty good question. If the government cannot force Elton John to say (in words), "I endorse Donald Trump," then why should the government be allowed to force the use of his talents to express that same message through his music? Thanks, -Smac Edited March 4, 2022 by smac97
pogi Posted March 4, 2022 Posted March 4, 2022 (edited) 28 minutes ago, smac97 said: Not really. Yes, really. 28 minutes ago, smac97 said: Pretty much. Yep. That's why "yes, really" it changes things completely. If a motto is not seen as speech, then there is no case. 28 minutes ago, smac97 said: 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? 28 minutes ago, smac97 said: Bespoke wedding cakes carry "no apparent message?" Are you sure? 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. Edited March 4, 2022 by pogi
Amulek Posted March 4, 2022 Posted March 4, 2022 1 hour ago, Stormin' Mormon said: Which, I guess, is the crux of our differences. I think all of those examples are speech, though the gaming example is a close call. I'd have to give some thought as to the best way to defend the notion that a gaming website has 1A protections. Have no fear. Video games are speech. As Justice Scalia wrote in his majority opinion for the Court in Brown v Entertainment Merchants Assn., "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." 2
pogi Posted March 4, 2022 Posted March 4, 2022 (edited) 42 minutes ago, Amulek said: Have no fear. Video games are speech. What about utility websites like a clock or a notepad, etc.? Correct me if I am wrong but the ruling was specific to "violent video games". Quote We consider whether a California law imposing restrictions on violent video games comports with the First Amendment . https://www.law.cornell.edu/supct/html/08-1448.ZO.html 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. Edited March 4, 2022 by pogi
smac97 Posted March 4, 2022 Author Posted March 4, 2022 17 hours ago, pogi said: 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. Really? CFR, please. 17 hours ago, pogi said: A live performance commissioned for the explicit purpose of promoting a political candidate is a matter of free speech. Agreed. But what about using a recorded version of a song? Is that "free speech" too? 17 hours ago, pogi said: Elton John can't refuse his purchased music from being used in any venue. Right. But he can refuse it being licensed. 17 hours ago, pogi said: If the baker refused the cake because of the sexual orientation of the person receiving the gift, yes, that is discrimination. He didn't. 17 hours ago, pogi said: Quote 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. I think it's hugely relevant. If Elton John disagrees with Donald Trump's politics, he ought to be free to not lend his (EJ's) "speech" to be used by Trump at rallies. If Jack Phillips disagrees with same-sex marriage, he ought to be free to not lend his "speech" to be used to celebrate a same-sex wedding. 17 hours ago, pogi said: Quote 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. I agree. 17 hours ago, pogi said: Quote 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." Could you elaborate? Why must the message be "specific?" Also, did you just make up this standard yourself? Or are you citing to some principle of law? I think Justice Gorsuch's concurring opinion in Masterpiece Cakeshop has some relevance here: Quote Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370 P. 3d, at 276 (stating that Mr. Craig and Mr. Mullins “requested that Phillips design and create a cake to celebrate their same-sex wedding”) (emphasis added). Like “an emblem or flag,” a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific “system, idea, [or] institution.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 632 (1943). It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack’s case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral. Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated. Civil authorities, whether “high or petty,” bear no license to declare what is or should be “orthodox” when it comes to religious beliefs, id., at 642, or whether an adherent has “correctly perceived” the commands of his religion, Thomas, supra, at 716. Instead, it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith. See generally Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 569 (1995) (“[T]he Constitution looks beyond written or spoken words as mediums of expression,” which are “not a condition of constitutional protection”). The second suggestion fares no better. Suggesting that this case is only about “wedding cakes”—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here. Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack’s case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips’s case (a cake that conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith, it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases—and that did not happen here. There is another problem with sliding up the generality scale: it risks denying constitutional protection to religious beliefs that draw distinctions more specific than the government’s preferred level of description. To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case—his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers’ secular beliefs in Mr. Jack’s case. This Court has explained these same points “[r]epeatedly and in many different contexts” over many years. Smith, 494 U. S. at 887. For example, in Thomas a faithful Jehovah’s Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. 450 U. S., at 711. Of course, the line Mr. Thomas drew wasn’t the same many others would draw and it wasn’t even the same line many other members of the same faith would draw. Even so, the Court didn’t try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id., at 714–716; see also United States v. Lee, 455 U. S. 252, 254–255 (1982); Smith, supra, at 887 (collecting authorities). It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap. Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case. The Court recognizes this by reversing the judgment below and holding that the Commission’s order “must be set aside.” Ante, at 18. Maybe in some future rulemaking or case the Commission could adopt a new “knowing” standard for all refusals of service and offer neutral reasons for doing so. But, as the Court observes, “[h]owever later cases raising these or similar concerns are resolved in the future, . . . the rulings of the Commission and of the state court that enforced the Commission’s order” in this case “must be invalidated.” Ibid. Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment. Man, I wish I could write like that. 17 hours ago, pogi said: 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. 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. Thanks, -Smac 1
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