Update on the "Cake Wars" - Re: Free Speech, Free Exercise, and Nondiscrimination Statutes

[smac97]

2 hours ago, Daniel2 said:

Agreed. I think this is a clear cut case of a custom-colored cake NOT being speech. Regardless of what a cake symbolizes to the recipient, if a baker is willing to make the exact same custom cake for someone else, I think it’s clear they can’t refuse service to another customer based on the meaning behind the occasion being celebrated.

A baker who’s happy to bake a custom white cake with white frosting to celebrate a Catholic’s first communion (or any other occasion) could not refuse to sell the very same custom white cake with white frosting to celebrate a Latter-day Saint’s baptism without violating public accommodation laws—and rightly so, IMO.

Here's the part I'm struggling to address:

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What do Adele, The Rolling Stones, Twisted Sister, Steven Tyler, R.E.M., Elton John, Luciano Pavarotti, Queen and George Harrison have in common?

They are all musicians who, either directly or through representatives, have told Donald Trump to stop using their music at his campaign rallies and events.

Quoth Dee Snider: 

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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.”

Quoth 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.'"

Quoth 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."

Quoth 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."

Quoth 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."

The songs being used by Donald Trump are "exactly the same" as they are when used in other venues, and yet these various artists do not want Donald Trump to use their music in his campaign rallies.  Now why is that?  Well...

• "People think I'm endorsing you here.  I can't get behind a lot of what you're saying."
• "[Using Aerosmith songs at Trump rallies] gives the false impression that he is connected with or endorses Mr. Trump's presidential bid."
• "[Pavarotti's values] are entirely incompatible with the world view offered by the candidate Donald Trump."
• "Queen does not want [its music] ... to be used as an endorsement of Mr. Trump."
• "[H]is political views are his own, mine are very different, I’m not a Republican in a million years."

The use of these artists' "speech" in a particular venue (a Trump rally) is - as you put it "speech [that is] saying something different" than if it were being used in other venues.  

More to the point, it's their music.  It's their artistic expression.  It's their speech.  Since when are Americans in Group X in the habit of coercing other Americans in Group Y to speak in ways that contravene the beliefs and values of Group Y?

If Elton John doesn't like the way his artistic expression is to be used in a particular venue, in ways that he feels give the impression of his endorsement, then he should be entitled to refuse permission for such use.  That's not bigotry.  That's Elton John recognizing the reality that the use of his artistic speech at a Trump rally gives the impression that he is endorsing that event.

Likewise, if Mr. Phillips doesn't like the way his artistic expression is to be used in a particular venue, in ways that he feels give the impression of his endorsement, then he should be entitled to refuse permission for such use.  That's not bigotry.  That's Mr. Phillips recognizing the reality that the use of his artistic speech at a gay wedding gives the impression that he is endorsing that event.

We're all supposed to like the concept of equal rights, correct?  And yet there are some folks who would deprive Mr Phillips of his right to the use of his artistic speech that is claimed by Elton John and all the other artists quoted above.  These folks cheer the government coercing and punishing Mr. Phillips for refusing the use of his artistic speech at in ways that do not reflect his values, and which use may give the false impression of his endorsement.

And here:

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It's a cake with pink frosting.

And Elton John's "Rocket Man" is a song describing "a Mars-bound astronaut's mixed feelings at leaving his family in order to do his job."  And yet the use of that song in certain ways, and in certain venues, may nevertheless be objectionable to Elton John.

For example, let's say that Westboro Baptist Church wants to hire Elton John to sing that song at an anti-gay rally, during a video depicting rockets being launched and aimed at San Francisco, with the idea being that homosexuals there would be wiped out.

Elton John, understandably, I think, would not want to participate in such an event, nor would he want his song used in such a venue.  Not only would the use of the song in this way and in this venue convey a message contrary to his ethics and beliefs, it would also likely convey a message that Elton John supports and endorses the ideas espoused by the Westboro Baptist Church.  Consequently, Elton John wants to have the right to refuse to perform or otherwise participate in this anti-gay rally.  He also wants to have the right to refuse the use of his songs at this rally.  His songs are a form of art.  They are a form of speech.  He does not want to be seen as potentially allowing his speech to connote endorsement of the ideas promulgated by the Westboro Baptist Church.

What are your thoughts on this?  Should he have the right to refuse to participate in their rally?  Should he have the right to refuse to allow his songs to be used in their rally, even if he does not personally participate?

On the one hand, I think "a pink cake with blue frosting" that even Jack Phillips agrees is not "speech" does not immediately and apparently implicate the First Amendment.  That being the case, nondiscrimination statutes would seem to apply.

On the other hand, I think that Elton John's "Rocket Man" at a Trump rally, whether as a live performance or just playing a recording of it, might be reasonably construed as an endorsement.  If Elton John gets to pick and choose, based on the venue and circumstance, when his music used, why can't Jack Phillips have the right to pick and choose, based on the venue and circumstance, when his cakes are used?

Is "a pink cake with blue frosting," to be used in a particular type of celebration (as we saw with Scardina's cake) comparable to a recording of "Rocket Man" at a Trump rally?

I don't know.  I am soliciting input from you folks.

Thanks,

-Smac

[bsjkki]

Is it the ‘who’ or the ‘what?’ The question repeatedly emphasized in Supreme Court arguments. The cake was a custom order. Public accommodation laws and how that is defined was a big part of the 303 creative case. Colorado’s definition is very broad. I think custom orders, not off the shelf orders, should provide creators rights of conscience and not be part of public accommodation laws.  
 

The musicians sell the rights to their songs to anyone who buys the ‘rights’ to play them. It’s usually not on an individual artist/song basis. They then seem to want to get royalties for selling these rights in a package deal and rescind the right of a paying costumer they don’t like. What has the law ruled on this? 
 

If an artist wants to control the venue/use, he should approve the use on an individual client basis. 

Edited January 29, 2023 by bsjkki

[bsjkki]

ASCAP issues. 

 

 

Edited January 29, 2023 by bsjkki

[Benjamin McGuire]

2 hours ago, provoman said:

and I will assume you would say Justice Clarence Thomas was wrong for quoting Fredrick Douglas in his opinion opposing affirmative action in scholastic admissions; because Justice Thomas did not respond the one and true way as you propose.

It is absurd to think to claim a "if, then" for individual experiences. It reminds me of the lyrics "can't be a man because he does not smoke the same cigarettes as me".

As much as I would like to answer this question, this seems like it is probably more political than the mods would like.

[Benjamin McGuire]

1 hour ago, smac97 said:

On the other hand, I think that Elton John's "Rocket Man" at a Trump rally, whether as a live performance or just playing a recording of it, might be reasonably construed as an endorsement.  If Elton John gets to pick and choose, based on the venue and circumstance, when his music used, why can't Jack Phillips have the right to pick and choose, based on the venue and circumstance, when his cakes are used?

One difference smac97 is that muscian's music is licensed. It isn't bought or owned in the sense that a cake is bought or owned, and it isn't 'consumed' in the same way a cake is. We tend to view music as intellectual property, and a cake? Not so much.

[Benjamin McGuire]

40 minutes ago, bsjkki said:

I think custom orders, not off the shelf orders, should provide creators rights of conscience and not be part of public accommodation laws.

Maybe if the design is left to the cake maker. If I order a custom cake for my son's graduation with an edible photo on it, that distinction of creator is awfully blurry. When does a custom cake become more like work-for-hire than creative expression for hire?

[smac97]

4 minutes ago, Benjamin McGuire said:

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On the other hand, I think that Elton John's "Rocket Man" at a Trump rally, whether as a live performance or just playing a recording of it, might be reasonably construed as an endorsement.  If Elton John gets to pick and choose, based on the venue and circumstance, when his music used, why can't Jack Phillips have the right to pick and choose, based on the venue and circumstance, when his cakes are used?

One difference smac97 is that muscian's music is licensed.  It isn't bought or owned in the sense that a cake is bought or owned, and it isn't 'consumed' in the same way a cake is. We tend to view music as intellectual property, and a cake? Not so much.

That's a pretty good point, but the problem of use-of-art-in-a-particularized-venue-creating-a-perception-of-"endorsement" still seems to be common to both situations.  But perhaps the distinction you are noting here is sufficient to justify disparate treatment under the law.

Thanks,

-Smac

[Benjamin McGuire]

37 minutes ago, smac97 said:

That's a pretty good point, but the problem of use-of-art-in-a-particularized-venue-creating-a-perception-of-"endorsement" still seems to be common to both situations.  But perhaps the distinction you are noting here is sufficient to justify disparate treatment under the law.

There is another distinction. People use music because music has a message of its own. And with music, we can determine who made it - so it could create the perception of "endorsement". But this isn't true for most cakes. A cake doesn't have a message of its own. It isn't uniquely identified (generally). On the shelf, it is merely a cake. At my party it is a cake that anyone could have made (myself included - although maybe not so well). No one takes a cake and buys it, with the expectation that the cake maker can dictate how it is consumed. And when I buy a cake, I am certainly not paying for the right to provide the cake maker's message to my friends and family. It is my message that is being presented with the cake. And usually, it is anything but a public expression. But, who knows how the court will deal with it.

Regardless, the question of whether the cake is art is still open.

[smac97]

8 minutes ago, Benjamin McGuire said:

Quote

That's a pretty good point, but the problem of use-of-art-in-a-particularized-venue-creating-a-perception-of-"endorsement" still seems to be common to both situations.  But perhaps the distinction you are noting here is sufficient to justify disparate treatment under the law.

There is another distinction. People use music because music has a message of its own.

Right.  But that "message" can be pretty attenuated.  For example, in 1995 Microsoft paid $3 million to use the Rolling Stones' 1981 song Start Me Up, a song that is basically about having sex, in a marketing campaign for Windows 95.  The song was used because Windows 95 introduced the use of a "Start" button on the desktop.

Trump was using Aerosmith's "Dream On" in his rallies, and Queen's "We are the Champions."  That use was really attenuated from those songs' actual lyrics/message.  Moreover, these artists did not appear to object to Trump appropriating the "message" of their songs, but were rather concerned about the use of these songs giving the impression of endorsement or support:

• "People think I'm endorsing you here.  I can't get behind a lot of what you're saying."
• "[Using Aerosmith songs at Trump rallies] gives the false impression that he is connected with or endorses Mr. Trump's presidential bid."
• "Queen does not want [its music] ... to be used as an endorsement of Mr. Trump."

Could Jack Phillips find a workaround to this concern?  I think so.  He could refuse cake orders that include "messages" which he finds problematic.  As for more generic, not-particularly-message-ish orders for things like a pink cake with blue frosting, he could provide them without any specialized advertising linking them to Masterpiece Cakeshop.  No embossed napkins, boxes, etc.

However, could this sort of workaround be available for, say, a caterer?  Can a caterer, on Free Speech or religious or "Freedom of Association" or "I don't want to give the impression of endorsement" grounds, decline to cater a same-sex wedding?  

Thanks,

-Smac

[Benjamin McGuire]

5 minutes ago, smac97 said:

However, could this sort of workaround be available for, say, a caterer?  Can a caterer, on Free Speech or religious or "Freedom of Association" or "I don't want to give the impression of endorsement" grounds, decline to cater a same-sex wedding?  

Over the course of my career and my public service opportunities, I have never been to an event where I, or anyone that I know, ever believed that the caterer, special entertainment, or whatever it was, was endorsing the event, or had their own message (apart from maybe self-promotion). This is part of the issue. If the cake is really a message, then whose message is it? The courts haven't ruled on this issue yet. As I said, when we have bought cakes, or hired caterers, we were definitely not hiring them to promote their message - we are hiring them so that we can better express our own. This case seems to be trying to create a sense of meaning where it hasn't before existed - and doing so with the intent of finding a way to legalize discrimination.

[Scott Lloyd]

2 hours ago, smac97 said:

Here's the part I'm struggling to address:

And here:

On the one hand, I think "a pink cake with blue frosting" that even Jack Phillips agrees is not "speech" does not immediately and apparently implicate the First Amendment.  That being the case, nondiscrimination statutes would seem to apply.

On the other hand, I think that Elton John's "Rocket Man" at a Trump rally, whether as a live performance or just playing a recording of it, might be reasonably construed as an endorsement.  If Elton John gets to pick and choose, based on the venue and circumstance, when his music used, why can't Jack Phillips have the right to pick and choose, based on the venue and circumstance, when his cakes are used?

Is "a pink cake with blue frosting," to be used in a particular type of celebration (as we saw with Scardina's cake) comparable to a recording of "Rocket Man" at a Trump rally?

I don't know.  I am soliciting input from you folks.

Thanks,

-Smac

Points well taken. But I thought George Harrison died quite a while before Trump got into politics. 

[helix]

3 hours ago, smac97 said:

I don't know.  I am soliciting input from you folks.

Sounds like it's been covered, but in my mind, it's a copyright vs art situation.  So apples and oranges.

Music artist Alice can declare who has rights to rebroadcast a copyrighted work (her music).  Cake artist Bob is in an entirely different situation as he didn't copyright his cake art and others aren't trying to resell it.

[Benjamin McGuire]

One more quick thought -

One thing the current version of this case highlights is that the meaning of the cake may change by context. The same cake may mean different things for a birthday party than it does for a transgender celebration. The cake maker does not supply the context. He only supplies the cake. So in this way it can be argued that the cake maker is not the creator (at least not solely) of the meaning of the cake. A cake on a shelf may have no meaning at all. (After all, my wife loves eating birthday cake, and we buy a half dozen of them a year for no other reason than to satisfy a craving).

[provoman]

3 hours ago, Benjamin McGuire said:

As much as I would like to answer this question, this seems like it is probably more political than the mods would like.

Fair enough,

addressing this statement should not violate political comments

"If you have really experienced discrimination at this level, then your response should have been quite different."

 

You are dictating how someone should or must respond, regardless of their own feelings of their personal experience.

Edited January 30, 2023 by provoman

[Buckeye]

On 1/27/2023 at 11:54 PM, Calm said:

Yes.  I wonder if the rest of the family has embraced their new status or not.

added:  according to him they have…

https://dailycitizen.focusonthefamily.com/an-interview-with-jack-phillips-of-masterpiece-cakeshop-christian-baker-author/

I just found out this shop is just a couple of miles from where my sister lives, same city, two lefts and a right.  I will have to ask her what she hears about it.

The cake shop is in my stake (barely) so maybe your sister is too. 

[Buckeye]

On 1/28/2023 at 10:01 AM, california boy said:

Does a retailer have any rights of control over what he sells once it leaves his store?  

A retailer not so much but IP rights owners and manufacturers have some rights. For example, search digital millennium copyright act and right to repair laws. There is debate whether such rights should exist, but they currently do. 
 

Other countries have even stronger rights for IP owners.  For instance, in the US if you buy a Picasso you can burn it up. It’s your painting. But in France you arguably couldn’t without the painters consent. 

[Buckeye]

7 hours ago, smac97 said:

Here's the part I'm struggling to address:

And here:

On the one hand, I think "a pink cake with blue frosting" that even Jack Phillips agrees is not "speech" does not immediately and apparently implicate the First Amendment.  That being the case, nondiscrimination statutes would seem to apply.

On the other hand, I think that Elton John's "Rocket Man" at a Trump rally, whether as a live performance or just playing a recording of it, might be reasonably construed as an endorsement.  If Elton John gets to pick and choose, based on the venue and circumstance, when his music used, why can't Jack Phillips have the right to pick and choose, based on the venue and circumstance, when his cakes are used?

Is "a pink cake with blue frosting," to be used in a particular type of celebration (as we saw with Scardina's cake) comparable to a recording of "Rocket Man" at a Trump rally?

I don't know.  I am soliciting input from you folks.

Thanks,

-Smac

When you hear “rocket man” you think of Elton John because there is only one such song and he wrote/sung it. But when you see a blue/pink cake you don’t necessarily think of masterpiece cakes because there’s a million cake makers in the world, any one of which could make that cake. The issue is association. Generic products don’t create an association. 

[Benjamin McGuire]

10 hours ago, provoman said:

You are dictating how someone should or must respond, regardless of their own feelings of their personal experience.

Not at all. There is something ironic here in your suggestion. Kennego essentially claimed that his own experience with discrimination was equivalent to all of these other types of discrimination and that they should just "suck it up buttercup." I called him on it. As a white, straight man, whatever his issues may be, he has never had to deal with the types of discrimination that we are dealing with here. I will stand by that statement. I am simply reversing the statement that Kennego made along with it's implications. Whenever we have discrimination, we should be discouraging barriers that are erected to keep those being discriminated against from being able to challenge that discrimination. Our society needs to confront discrimination in all of its forms - it is good for us to deal with these issues and to make it clear that discrimination is bad for us.

[california boy]

11 hours ago, Buckeye said:

A retailer not so much but IP rights owners and manufacturers have some rights. For example, search digital millennium copyright act and right to repair laws. There is debate whether such rights should exist, but they currently do. 
 

Other countries have even stronger rights for IP owners.  For instance, in the US if you buy a Picasso you can burn it up. It’s your painting. But in France you arguably couldn’t without the painters consent. 

I get the distinction between the two.  One is created to be eaten. The other is created to last forever.  

[Daniel2]

20 hours ago, smac97 said:

Here's the part I'm struggling to address:

And here:

On the one hand, I think "a pink cake with blue frosting" that even Jack Phillips agrees is not "speech" does not immediately and apparently implicate the First Amendment.  That being the case, nondiscrimination statutes would seem to apply.

On the other hand, I think that Elton John's "Rocket Man" at a Trump rally, whether as a live performance or just playing a recording of it, might be reasonably construed as an endorsement.  If Elton John gets to pick and choose, based on the venue and circumstance, when his music used, why can't Jack Phillips have the right to pick and choose, based on the venue and circumstance, when his cakes are used?

Is "a pink cake with blue frosting," to be used in a particular type of celebration (as we saw with Scardina's cake) comparable to a recording of "Rocket Man" at a Trump rally?

I don't know.  I am soliciting input from you folks.

Thanks,

-Smac

Couple of my thoughts:

1) I can see a case being made that music is, itself, inherently expressive, similar to  how words or some types of images made in frosting on a cake are inherently expressive. Therefore, cake decorators declining to produce cakes with specific words or expressive images (i.e. swastikas, burning crosses, violent or satanic images, etc.) and musicians declining the use of their songs fall under protected speech, not commodities, according to public accommodation laws.

2) As it currently stands, political affiliation isn’t widely held to be a protected class (I realize there are some exceptions, mainly in and around D.C.)

3) I believe copyright laws (including licensing, royalties, etc.) apply to music and lyrics, which clearly wouldn’t apply to an inherently non-expressive pink and blue cake. So that’s an apples to oranges comparison.

EDIT: looks like several others already made similar points. Well said. 

Edited January 30, 2023 by Daniel2

[smac97]

1 hour ago, Daniel2 said:

Couple of my thoughts:

1) I can see a case being made that music is, itself, inherently expressive, similar to  how words or some types of images made in frosting on a cake are inherently expressive. Therefore, cake decorators declining to produce cakes with specific words or expressive images (i.e. swastikas, burning crosses, violent or satanic images, etc.) and musicians declining the use of their songs fall under protected speech, not commodities, according to public accommodation laws.

I think I'm on board with this.  

1 hour ago, Daniel2 said:

2) As it currently stands, political affiliation isn’t widely held to be a protected class (I realize there are some exceptions, mainly in and around D.C.)

I concur.  It seems like musicians have pretty much carte blanche to resist compelled speech.  Other parties/artists ought to have the same right.  I think we are all coming to a consensus on that.

1 hour ago, Daniel2 said:

3) I believe copyright laws (including licensing, royalties, etc.) apply to music and lyrics, which clearly wouldn’t apply to an inherently non-expressive pink and blue cake. So that’s an apples to oranges comparison.

Perhaps so.

Thanks,

-Smac

[smac97]

19 hours ago, Benjamin McGuire said:

Regardless, the question of whether the cake is art is still open.

I think the more salient question is whether a cake can be "speech."  The answer is pretty clearly yes, it may qualify as speech (depending on the circumstances).

Thanks,

-Smac

[The Nehor]

21 hours ago, smac97 said:

That's a pretty good point, but the problem of use-of-art-in-a-particularized-venue-creating-a-perception-of-"endorsement" still seems to be common to both situations.  But perhaps the distinction you are noting here is sufficient to justify disparate treatment under the law.

Thanks,

-Smac

There is also the distinction that music is often easily recognized as being created by a specific person while 99.9% of people won’t know or care who made a cake.

[Amulek]

27 minutes ago, smac97 said:

I think the more salient question is whether a cake can be "speech."  The answer is pretty clearly yes, it may qualify as speech (depending on the circumstances).

If you read Justice Thomas' concurring opinion in the Masterpiece decision, he mentions that "[t]o determine whether conduct is sufficiently expressive [to qualify as protected speech], the Court asks whether it was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.”

I think there's a colorable argument to be made that, in the context of a gender transition birthday party, a pink/blue cake might reasonably be understood by a viewer as being communicative. That being said, I think the facts were much more in Phillips' favor in the wedding cake case than in this one.

 

[Daniel2]

1 hour ago, smac97 said:

I think the more salient question is whether a cake can be "speech."  The answer is pretty clearly yes, it may qualify as speech (depending on the circumstances).

Thanks,

-Smac

I agree with the above.