Supreme Court says First Amendment entitles web designer to refuse to do gay weddings

[Benjamin McGuire]

5 hours ago, Stormin' Mormon said:

I'm not sure that this example supports your arguments. Publishers have rejected manuscripts with messages that they've disagreed with for as long as there has been a free press, and done so without controversy. It doesn't matter, like at all, if the public wouldn't be confused about who originated the message because free speech is as much about carrying the message, as it is about originating it.

Again, you are also missing the problem. Generally speaking, you can reject whatever you want. You don't have to let anyone buy from you. The problem occurs, according to our historical understanding of civil rights in the United States, when you deny services that you would normally offer on the basis of a protected class - Race, Religion, Gender, and so on. If you refused to publish someone's work - specifically because they were black - that wouldn't be allowed. If you refused to publish their work because of the content (and you refused to publish that sort of content for everyone) - that is perfectly fine. The challenge is that the court has defined gays as a protected class - and so, prior to this decision, you couldn't refuse to provide services specifically because they were gay. The courts have further ruled (with a long history) that you cannot try to substitute a reason that is equivalent to the nature of the suspect class. So you couldn't say, I only provide websites for heterosexual couples and not same sex couples and expect that you could, by definition, avoid the complaint that you were discriminating based on a suspect class.

As far as the last sentence - "about who originated the message because free speech is as much about carrying the message, as it is about originating it" you are making a mistake here. The website creator is not the originator of the message. The couple is the originator of the message. In fact, without the request from a same-sex couple, the website wouldn't come into existence. Let's ignore for just a moment the fact that it has become clear that this case centered on a fake request. The person who is identified in the case as having made the request never asked for the website, is not gay, and is in a happy heterosexual marriage.

5 hours ago, webbles said:

This doesn't sound like anything that Ms. Smith is going to do.  I have no experience hiring a vanity press but I'm pretty sure that they don't change the text.  They don't pick the images that go in the book.  They might decide on the font, but I'm assuming the customer has a say in it.  The work to publish the book isn't speech.

And the work to publish a website isn't speech either. Now, perhaps you can explain why we should consider it speech. Who is their audience? Perhaps you could explain (using speech act theory) what role Ms. Smith actually plays in the speech? Is she the author? The animator? The principle?

5 hours ago, webbles said:

Ms. Smith, on the other hand, is closer to a ghostwriter.  The customer comes to her, gives her pictures, tells their story, and then she takes that and builds a custom website.  She selects the text that will be shown, the images that will be shown, etc.

No. What you are describing is not what a ghostwriter does at all. Most importantly, as the link suggests:

Quote

However, when credit is established for the writer, the acknowledgment of their contribution is public domain and the writer in question would not be considered a ghostwriter.

Ghostwriters don't get credit for what they do. At all. It cannot be considered their speech - it is work-for-hire. Many decades ago, when I worked in the newspaper industry, I spent a fair amount of time designing advertising. Why I did a full page ad for Smith's, was it my speech on that page?

5 hours ago, webbles said:

You seem to be focused on the "publishing" part but this case has nothing to do with publishing.  As I mentioned earlier, it is closer to a ghostwriter or even a speechwriter.  When you listen to a speech, do you think about who wrote the speech?  Does it really matter to the listener?  But the speechwriter's speech is definitely there even though no one knows that they wrote it.

I am focusing on publishing because their is little question over the nature of the printed material as a text that is capable of being speech. And no, the speechwriter's isn't their speech even if no one knows that they wrote about it. I could direct to you the technical literature on that subject if you want.

[CV75]

2 hours ago, Benjamin McGuire said:

Parrot's however, don't have a message of their own. Imitation is not speech. It may look like speech. It may sound like speech. But, speech has to meet certain requirements to even be considered speech. On a similar note, we wouldn't consider what an AI spits out to be speech - in part because we haven't decided that algorithms can actually be authors, or that they can mean something when they produce text (or audio).

If that is what you want "parrot [verb]" to mean. We don't pay the "parrot [noun]"; maybe we'll pay the parrot's owner. The paid artist conveys both content/text ("Happy Wedding") and meaning ("Man/Male and Wife/Female") in the medium at hand (e.g., cake, website). The former is a mechanical repetition, but interpreting and conveying context and meaning to the purchaser's liking requires a degree of artistic empathy, a relational process warranting agreement of conscience and mutual consent. This kind of art gets very personal. To be snobby about it, a "parroting artist" is an oxymoron in my book. On a similar note, I wonder if the guy on the boardwalk will decline painting my black velvet Elvis if I insist it show him serenading Sheela Na Gigs.

[Malc]

I have a bottling business. I provide the bottles, and my customers bring me jugs of the material they want to be put in the bottles. Usually I really don't care - I'll put whatever anyone wants in bottles - as long as it's not going to explode. No Molotov cocktails from my bottling plant - no siree!

Recently a guy brought me a jug of whisky, and I refused him service: for that sort of material, I believe that only whiskey should be put in bottles.

He's Scottish Canadian, and probably some kind of commie too. He says he's going to sue me, and force me to bottle his whisky.

Can he do that? Should he be allowed to?

[webbles]

20 hours ago, Benjamin McGuire said:

And the work to publish a website isn't speech either. Now, perhaps you can explain why we should consider it speech. Who is their audience? Perhaps you could explain (using speech act theory) what role Ms. Smith actually plays in the speech? Is she the author? The animator? The principle?

Maybe you should read the 10th Circuit ruling?  They ruled against Ms. Smith but did say that what she was doing was 100% speech.  Here's a link to the opinion - https://law.justia.com/cases/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.html.  Starts on page 21 in the PDF and goes till page 25.  In the Supreme Court majority opinion, they agree with that analysis (page 9-11 of the majority opinion).  I can't find anything in the dissent that argues against it.  They also talk about speech and compelled speech as if it is a given that it is speech.

I don't know all the legalities around speech and such, but I hope the 10th Circuit and the Supreme Court does.

20 hours ago, Benjamin McGuire said:

No. What you are describing is not what a ghostwriter does at all. Most importantly, as the link suggests:

Quote

However, when credit is established for the writer, the acknowledgment of their contribution is public domain and the writer in question would not be considered a ghostwriter.

Ghostwriters don't get credit for what they do. At all. It cannot be considered their speech - it is work-for-hire. Many decades ago, when I worked in the newspaper industry, I spent a fair amount of time designing advertising. Why I did a full page ad for Smith's, was it my speech on that page?

Just because ghostwriters get no credit has no bearing on whether it is the ghostwriter's speech.  I think you are thinking more around attribution or copyright.  Neither of those are related to speech and compelled speech.

20 hours ago, Benjamin McGuire said:

I am focusing on publishing because their is little question over the nature of the printed material as a text that is capable of being speech. And no, the speechwriter's isn't their speech even if no one knows that they wrote about it. I could direct to you the technical literature on that subject if you want.

I'd love to see the technical literature, but since the majority also talk about how speechwriters don't give up their First Amendment right, I think you might be referencing something unrelated.  From the majority opinion, bottom of page 16.

Quote

Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return

 

20 hours ago, Benjamin McGuire said:

As far as the last sentence - "about who originated the message because free speech is as much about carrying the message, as it is about originating it" you are making a mistake here. The website creator is not the originator of the message. The couple is the originator of the message. In fact, without the request from a same-sex couple, the website wouldn't come into existence. Let's ignore for just a moment the fact that it has become clear that this case centered on a fake request. The person who is identified in the case as having made the request never asked for the website, is not gay, and is in a happy heterosexual marriage.

Actually, we should ignore that bolded part.  The lawsuit was originally filed September 20th.  The fake request was made on September 21st.  So the fake request wasn't part of the lawsuit.  They did reference it but the 10th Circuit analysis on whether Ms. Smith had standing didn't reference that fake request (pages 11-19).  This is probably the most relevant paragraph (page 16):

Quote

Contrary to Colorado’s assertion, Appellants’ fears do not “rest[]    on guesswork” or “a highly attenuated chain of possibilities.”  Colorado’s Br. at 29.  If anything, it is Colorado that invites this court to speculate.  Assuming Appellants offer wedding-related services to the public as they say they will, there is no reason to then conclude that Appellants will fail to attract customers.  Nor is there reason to conclude that only customers celebrating opposite-sex marriages will request Appellants’ services.  In short, we find nothing “imaginary or speculative” about Appellants’ apprehensions that they may violate CADA if they offer wedding-based services in the manner that they intend.  SBA List, 573 U.S. at 165.

Having an actual example of Ms. Smith receiving a request for a wedding site would have been perfect for showing how it wasn't "imaginary or speculative" but the 10th Circuit didn't mention it.  The Supreme Court majority accepted the analysis of the 10th Circuit in regards to standing since "no party challenges these conclusions." (page 5)

[MustardSeed]

I’m a marriage therapist.  I once refused a couple who was having an affair with each other- both parties were married to other people.  
Should I have done differently? 
 

Love is love right? 

[JLHPROF]

7 minutes ago, MustardSeed said:

I’m a marriage therapist.  I once refused a couple who was having an affair with each other- both parties were married to other people.  
Should I have done differently? 
 

Love is love right? 

"Love" is a word used to cover a multitude of sin.  It's no excuse.

[The Nehor]

1 hour ago, MustardSeed said:

I’m a marriage therapist.  I once refused a couple who was having an affair with each other- both parties were married to other people.  
Should I have done differently? 
 

Love is love right? 

Adulterers aren’t a protected class.

[MustardSeed]

55 minutes ago, The Nehor said:

Adulterers aren’t a protected class.

Good point.
Should I be willing to assist someone to leave the church? (I am, but what if I wasn’t?) 

What if the adulterers were gay and had heterosexual marriages? 
 

Im just being stupid.  I mean, that would never happen. 

[The Nehor]

6 minutes ago, MustardSeed said:

Good point.
Should I be willing to assist someone to leave the church? (I am, but what if I wasn’t?) 

What if the adulterers were gay and had heterosexual marriages? 
 

Im just being stupid.  I mean, that would never happen. 

I am guessing there is some kind of “conflict of interest” thing for therapists or “not being able in good conscience to help them achieve some goal” thing.

Two gay adulterers seeking couples counseling together behind their wives’ backs? Sounds like a really good or a really bad show. Bonus points if the wives team up to get revenge and end up falling in love. 

[webbles]

27 minutes ago, MustardSeed said:

Good point.
Should I be willing to assist someone to leave the church? (I am, but what if I wasn’t?) 

What if the adulterers were gay and had heterosexual marriages? 
 

Im just being stupid.  I mean, that would never happen. 

 

18 minutes ago, The Nehor said:

I am guessing there is some kind of “conflict of interest” thing for therapists or “not being able in good conscience to help them achieve some goal” thing.

Two gay adulterers seeking couples counseling together behind their wives’ backs? Sounds like a really good or a really bad show. Bonus points if the wives team up to get revenge and end up falling in love. 

There was a 6th Circuit Court opinion about something similar in 2012 (Ward vs Wilbanks - https://law.justia.com/cases/federal/appellate-courts/ca6/10-2145/10-2145-2012-01-27.html).  A student who, as part of the course, had to do a real counseling session and was assigned to help with a homosexual client.  The student asked to not do that because of her religious conviction.  She was ultimately expelled from the program because of this.

The district court initially ruled in favor of the college.  The Circuit Court reversed the ruling and sent it back to the district court (which ended in a settlement).  The Circuit Court felt that there was enough to warrant a jury trial to decide whether the student was actually harmed by the college.  They point to some statement in the "ACA code of ethics" which can be read to say that a counselor can refer their clients to another counselor if there is a conflict of some sort.

Not sure if this new Supreme Court case (303 Creative vs Elenis) would have any effect, though. 

[Benjamin McGuire]

21 hours ago, Malc said:

Can he do that? Should he be allowed to?

Look, I realize that this wasn't a serious post, but it reflects a lot of the misconceptions at issue here.

In the US, you can sue anyone for anything. If the lawsuit is frivolous, not only will you lose, but you will be forced to pay for court costs (as a way of dissuading frivolous lawsuits). In the U.S., this would be considered a frivolous lawsuit.

This isn't analogous to what is being discussed here. In the US, we have what is called a suspect class - things like gender, race, religion - these characteristics are protected. While you can refuse to do work because of the nature of the work, you can't refuse to do work on the basis of these protected characteristics. If you refused the work because of the persons gender, their race, their religion, or any other suspect class, then its impermissible discrimination. For any other reason, its permissible discrimination.

There is a reason why all of these cases in the U.S. in recent years have dealt with marriage (directly or indirectly) of same-sex couples. In these cases, the protected characteristic cannot be easily separated (if it can be at all) from the work being done (and U.S. courts have recognized this principle for decades now). This is why this decision is a first - it has given free speech issues priority over discrimination against these protected characteristics for the first time.

[Benjamin McGuire]

5 hours ago, webbles said:

Maybe you should read the 10th Circuit ruling?  They ruled against Ms. Smith but did say that what she was doing was 100% speech.

I have read it. I don't disagree with you on the issue of whether or not what Ms. Smith was producing was speech. That's not in question. The majority though quoted precedent from Hurley - bolding is mine:

Quote

fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.

You are continue to avoid discussing the issues that I raise. The message isn't Ms. Smith's message. It is the message of those that hire Ms. Smith. It doesn't matter how much editorial action Ms. Smith takes in working with that message. It still isn't her message. And no one who looks at such a web site would ever think, "Wow, I like Ms. Smith's message".

The 10th decision largely ignored the issue. Whether or not it was speech belonging to Ms. Smith, the 10th decided that the law requiring Ms. Smith to provide web services to a gay couple just like any other couple was constitutional because Ms. Smith was denying services to a suspect class. And in the dissent from the U.S. Supreme Court, this is brought up:

Quote

Crucially, the law “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent,” the company offers “such speech” to other customers. FAIR, 547 U. S., at 62. Colorado does not require the company to“speak [the State’s] preferred message.” Ante, at 19. Nor does it prohibit the company from speaking the company’s preferred message. The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman. Brief for Respondents 15. (Just as it could offer only t-shirts with such quotations.) The company could also refuse to include the words “Love is Love” if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics.

and:

Quote

Once these features of the law are understood, it becomes clear that petitioners’ freedom of speech is not abridged inany meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws. FAIR, 547 U. S., at 60; Hishon, 467 U. S., at 78; Runyon, 427 U. S., at 176. Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks.

 

The distinction is quite reasonable, in my opinion. The majority in this case didn't really address this either. Instead, they simply argued that free speech claims supersede any claims of discrimination against a suspect class. And as long as we are willing to recognize that any work that can be considered expressive can be denied people based on what was previously protected characteristics and if we are okay with that, then this is a good thing. People can now deny services to LDS Church members as long as the services involve some sort of expressive effort. Are you okay with this?

6 hours ago, webbles said:

Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return

The dissent addresses this. But what the Supreme Court has just done is to allow such a speechwriter to categorically reject writing speeches for LDS members (regardless of the subject matter).

[Benjamin McGuire]

2 hours ago, MustardSeed said:

What if the adulterers were gay and had heterosexual marriages? 

It is irrelevant. If you reject any requests from gays (for whatever reason - the reason doesn't matter) - that's when it becomes discriminatory. If you reject all work with adulterers, regardless of their other characteristics, it isn't discrimination.

[Stormin' Mormon]

13 hours ago, Benjamin McGuire said:

This is why this decision is a first - it has given free speech issues priority over discrimination against these protected characteristics for the first time.

While I disagree that this is a first, this quoted bit does articulate why I think the decision in 303 was correct.

Free Speech originates from a set of laws that we, as a country, have designated "the supreme law of the land." Statutory law, including anti-discrimination measures, are therefore subordinate to that "supreme law," regardless of how noble or laudable those statutes are. Where a statute comes into conflict with a right encoded in that "supreme law", it is the statutory law that must take a lower priority. 

Overturning that order of priority would have required the overturning of precedence a century and a half older than the Wooley precedent I noted earlier. 

Edited July 3, 2023 by Stormin' Mormon

[webbles]

14 hours ago, Benjamin McGuire said:

You are continue to avoid discussing the issues that I raise. The message isn't Ms. Smith's message. It is the message of those that hire Ms. Smith. It doesn't matter how much editorial action Ms. Smith takes in working with that message. It still isn't her message. And no one who looks at such a web site would ever think, "Wow, I like Ms. Smith's message".

I'm not avoiding it.  I don't see how it is pertinent.  Whether I know that the end result was her speech or not doesn't negate the fact that it was her speech.  I don't see this issue discussed in either the 10th Circuit, the majority, or the minority.

14 hours ago, Benjamin McGuire said:

The distinction is quite reasonable, in my opinion. The majority in this case didn't really address this either. Instead, they simply argued that free speech claims supersede any claims of discrimination against a suspect class. And as long as we are willing to recognize that any work that can be considered expressive can be denied people based on what was previously protected characteristics and if we are okay with that, then this is a good thing.

I don't think the distinction is reasonable.  The minority is basically saying: "You can discriminate who work with if you already discriminate who you work with".  That's how I read their statement "Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large.".  Also the majority, in page 24 note 7, point out that law actually encompasses "any place of business engaged in any sales to the public."  That would encompass Steven Spielberg and Banksy unless they are selling only to corporations.

The majority didn't argue "that free speech claims supersede any claims of discrimination against a suspect class.".  They mentioned, multiple times, how Ms. Smith has stated she won't discriminate against the suspect class (page 2, 4, 17).  Colorado even agrees that she won't discriminate against the suspect class (page 4, 17, 20).  Personally, I think the fact that Colorado agreed really hurt their case.

The minority, rightfully, points out that separating out speech about gay marriage and discriminating against gays is extremely difficult, if not impossible.  But the majority felt that there was a thin line that separates it and ruled in favor of Ms Smith's speech.

14 hours ago, Benjamin McGuire said:

People can now deny services to LDS Church members as long as the services involve some sort of expressive effort. Are you okay with this?

That is not what the ruling says.  What it says is that if there was a speechwriter that had a strong belief that LDS will go to hell, then no one should be able to compel that speechwriter to write a speech talking about how the LDS are the only ones that will be saved and everyone else goes to hell.  And I'm ok with that.  And I would be glad to know that the speechwriter has an issue before I engage that speechwriter so that I know I can find a speechwriter who would do a much better job for me.

Just because a service involves some sort of expressive effort isn't enough to deny service.  It has to be more than incidental.  I also am not sure how this works with a person who just does one thing.  For Ms. Smith, she sells a lot of different products and so could truthfully answer the statements that she doesn't deny service to anyone except with wedding sites.  If someone just sold wedding sites, I'm not sure this ruling would help them.

[The Nehor]

6 hours ago, Stormin' Mormon said:

While I disagree that this is a first, this quoted bit does articulate why I think the decision in 303 was correct.

Free Speech originates from a set of laws that we, as a country, have designated "the supreme law of the land." Statutory law, including anti-discrimination measures, are therefore subordinate to that "supreme law," regardless of how noble or laudable those statutes are. Where a statute comes into conflict with a right encoded in that "supreme law", it is the statutory law that must take a lower priority. 

Overturning that order of priority would have required the overturning of precedence a century and a half older than the Wooley precedent I noted earlier. 

I think you are overly expanding the definition of free speech here.

[Malc]

20 hours ago, Benjamin McGuire said:

Look, I realize that this wasn't a serious post, but it reflects a lot of the misconceptions at issue here.

...

Benjamin, In my "defense", I'm probably as ignorant about the details of the relevant laws in my jurisdiction.

I do, though, appreciate your taking the time to answer, rather than just tell me that I'm stupid and ignorant.

[Amulek]

23 hours ago, Stormin' Mormon said:

While I disagree that this is a first [...]

Quite so. There has been general agreement among scholars, at least since Hurley, that the Freedom of Speech clause of the First Amendment protects people who create speech from public accommodation laws that would force them to create unwanted speech. Conversely, there is similar agreement that such protection does not extend to people who don't create speech. Neither of these positions are especially controversial, and neither is changed by the recent decision in 303 Creative.

Also, it's probably worth noting (again) that the vast array of businesses have nothing to do with speech; they sell what the court calls "ordinary commercial products." And simply claiming that you are engaging in expressive conduct doesn't pass muster as far as courts are concerned. The "sandwich artist" at your local Subway (and yes, that's seriously what they call them) may feel like he is creating something unique - and maybe he is - but it isn't speech. 

Will there be cases at the margins? Sure; and when those cases are argued, courts will need to engage in some intensely fact-based line drawing. But this is the sort of thing that courts are well suited to handling - employing longstanding principles of free speech law to determine whether or not a particular good or service counts as speech and whether or not the vendor's objection is based on the message contained in the product itself and not the identity or status of the customer.

 

Edited July 4, 2023 by Amulek

[CV75]

21 hours ago, Benjamin McGuire said:

I have read it. I don't disagree with you on the issue of whether or not what Ms. Smith was producing was speech. That's not in question. The majority though quoted precedent from Hurley - bolding is mine:

You are continue to avoid discussing the issues that I raise. The message isn't Ms. Smith's message. It is the message of those that hire Ms. Smith. It doesn't matter how much editorial action Ms. Smith takes in working with that message. It still isn't her message. And no one who looks at such a web site would ever think, "Wow, I like Ms. Smith's message".

The 10th decision largely ignored the issue. Whether or not it was speech belonging to Ms. Smith, the 10th decided that the law requiring Ms. Smith to provide web services to a gay couple just like any other couple was constitutional because Ms. Smith was denying services to a suspect class. And in the dissent from the U.S. Supreme Court, this is brought up:

and:

The distinction is quite reasonable, in my opinion. The majority in this case didn't really address this either. Instead, they simply argued that free speech claims supersede any claims of discrimination against a suspect class. And as long as we are willing to recognize that any work that can be considered expressive can be denied people based on what was previously protected characteristics and if we are okay with that, then this is a good thing. People can now deny services to LDS Church members as long as the services involve some sort of expressive effort. Are you okay with this?

The dissent addresses this. But what the Supreme Court has just done is to allow such a speechwriter to categorically reject writing speeches for LDS members (regardless of the subject matter).

Speech, whatever form, is the sharing of ideas and opinions via communication. The originator’s message becomes the web designer’s when she is paid to transfer it through her web design. So, the designer may opt to refuse sharing it any further and thus deny the business transaction. It is not a categorical rejection of communicating a gay person’s message on other topics upon which they agree.

In the immortal words of e.e.cummings (not):

smm is an idea i wish not to share.

thare.

or convey.

todey. 

or whether you pay alot.

ornot.

[JarMan]

On 7/1/2023 at 3:33 AM, Benjamin McGuire said:

And the government, and the Supreme Court is not okay with your personal take on this. So this is irrelevant to this discussion. The Court here is just making the claim that the right to being compelled to speak is more important in our society than the right to not be discriminated against, and as long as you can make an appeal to your right to say whatever you want to say, then you can discriminate all you want. Historically, the Supreme Court has determined that you can have all the freedom of association that you want as long as it remains within the personal spheres. The moment you enter the market or governmental spheres, you are obligated to associate with those you don't want to. A county clerk cannot claim on the basis of freedom of association that they do not have to provide the gay couple with a marriage license. A business open to the public cannot refuse to serve people on the basis of their belonging to a suspect class. The Supreme Court has already determined that this is more important than the freedom of association.

An appeal to the court’s authority here is ironic since you are claiming they got it wrong this time.  

[JarMan]

On 7/1/2023 at 3:41 AM, The Nehor said:

So back to the “No Blacks allowed” signs outside of businesses? Probably “No Blacks or LGBTs or Wokesters” to update. Maybe add “No Irish” for those who want to honor their heritage.

Sure. Put up a sign excluding whoever you want. You’ll almost certainly get “canceled” for it. No reason to get the government involved. 

[smac97]

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

Again, you are also missing the problem. Generally speaking, you can reject whatever you want. You don't have to let anyone buy from you.  The problem occurs, according to our historical understanding of civil rights in the United States, when you deny services that you would normally offer on the basis of a protected class - Race, Religion, Gender, and so on.

I don't think this is an altogether proper characterization of the holding in 303 Creative.  The issue is not about being able to refuse to provide a service to a protected class.  Rather, the issue is about refusing to provide a service based on the content of the underlying speech.

From the opinion:

Quote

Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services.  Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “conve[y]” the “details” of their “unique love story.” App. to Pet. for Cert. 182a, 187a, 198a.  The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations.  Id., at 187a. The websites will be “expressive in nature,” designed “to communicate a particular message.” Id., at 181a.  Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one. Id., at 187a. 

While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans.  She worries that, if she does so, Colorado will force her to express views with which she disagrees.  Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation.  Id., at 184a.  But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. See ibid.; see also Tr. of Oral Arg. 19–20.  Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.  App. to Pet. for Cert. 177a–190a.  Ms. Smith acknowledges that her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe.  The Constitution, she insists, protects her right to differ. 
...

To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts: 

• Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation. App. to Pet. for Cert. 184a. 
• She will not produce content that “contradicts biblical truth” regardless of who orders it.  Ibid. 
• Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction. Id., at 179a. 
• All of the graphic and website design services Ms. Smith provides are “expressive.” Id., at 181a. 
• The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates. Id., at 181a–182a. 
• Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.”  Id., at 187a. 
• Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. Id., at 186a–187a.
• Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.”  Id., at 187a. 
• To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Id., at 190a.

This case does not create license to discriminate "on the basis of a protected class - Race, Religion, Gender, and so on."  This is expressly addressed in the opinion:

Quote

Nor does the dissent’s reimagination end there. It claims that, “for the first time in its history,” the Court “grants a business open to the public” a “right to refuse to serve members of a protected class.” Post, at 1; see also id., at 26, n. 10, 35. Never mind that we do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) “work with all people regardless of . . . sexual orientation.”  App. to Pet. for Cert. 184a.  Never mind, too, that it is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own. 

Even Colorado (!) didn't characterize the case this way.

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

If you refused to publish someone's work - specifically because they were black - that wouldn't be allowed.

That was not issue here, nor does the 303 Creative decision allow for that.

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

If you refused to publish their work because of the content (and you refused to publish that sort of content for everyone) - that is perfectly fine.

I agree.  That is the case here.

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

The challenge is that the court has defined gays as a protected class

I agree that this has happened, but I do not agree that this definition creates a "challenge."  See here:

Quote

Kimberly Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), was a decision of the United States Court of Appeals for the Seventh Circuit in which the Court held that discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act of 1964. The ruling made the Seventh Circuit the first federal appeals court to find that sexual orientation is a protected class under the Civil Rights Act of 1964.
...

The Court's decision in Hively made the Seventh Circuit the highest federal court to find sexual orientation discrimination unlawful. The New York Times called the ruling a "significant victory for gay rights" and noted that five of the eight judges in the majority were appointed by Republican presidents. The ruling resulted in a circuit split, which made it more likely that the Supreme Court would grant a petition for a writ of certiorari (i.e., to agree to review a case presenting a similar issue),^[3][9] although the defendant in Hively did not file a petition for certiorari.^[11]

In Evans v. Georgia Regional Hospital, the U.S. Court of Appeals for the Eleventh Circuit, faced with an identical issue, came to the opposite ruling, holding in 2017 that Title VII's prohibition on employment discrimination "because of ... sex" does not apply to discrimination based on sexual orientation. The Supreme Court denied a cert petition in that case.^[12][13]

In Bostock v. Clayton County, the Supreme Court in 2020 held that discrimination on the basis of sexual orientation or gender identity violates Title VII of the Civil Rights Act.^[14]

I think it is noteworthy that the Bostock decision - the one which "held that discrimination on the basis of sexual orientation or gender identity violates Title VII of the Civil Rights Act" - was authored by Justice Gorsuch, who also authored the 303 Creative decision.

The SCOTUS decision in 03 Creative does not reference Bostock at all, and the Tenth Circuit opinion in 03 Creative only mentioned Bostock in passing, and in a pretty milquetoast way.  See here:

Quote

A couple's request for a wedding website is, at least arguably, "inextricably bound up with" the couple's sexual orientation. Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1742 (2020). As the Supreme Court explained in Bostock, "[an] employer's ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an  employee worse based in part on that individual's sex." Id. So too here-although Appellants' "ultimate goal" might be to only discriminate against same-sex marriage, to do so Appellants might also discriminate against same-sex couples. As a result, Appellants' refusal may be "because of" the customers' sexual orientation, and thereby expose them to liability under CADA. See also Lawrence v. Texas, 539 U.S. 558, 583 (2003) (O'Connor, J., concurring) (anti-sodomy law does not target "conduct," but "is instead directed toward gay persons as a class"). We do not decide whether Appellants' (or any other businesses') conscience- or message-based objections are a defense against CADA; we only hold that such objections are at least "arguably . . . proscribed by [the] statute." SBA List, 573 U.S. at 162 (quoting Babbitt, 442 U.S. at 298) (alterations in original).

The District Court's decision in 303 Creative was issued on September 26, 2019, well before the 2020 decision in Bostock.  However, it too made no reference to the issue of "protected classes."

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

- and so, prior to this decision, you couldn't refuse to provide services specifically because they were gay.

Nor can you do that after the decision in 303 Creative.  The Supreme Court expressly stated that "we do no such thing."

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

The courts have further ruled (with a long history) that you cannot try to substitute a reason that is equivalent to the nature of the suspect class. So you couldn't say, I only provide websites for heterosexual couples and not same sex couples and expect that you could, by definition, avoid the complaint that you were discriminating based on a suspect class.

As I understand it, the appellant in 303 Creative did not make such an argument.  Rather, her argument is that she will not "speak" in favor of same-sex marriage regardless of who requests that she do so.  This was a pretty important component of the case, and Colorado stipulated to it.

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

As far as the last sentence - "about who originated the message because free speech is as much about carrying the message, as it is about originating it" you are making a mistake here. The website creator is not the originator of the message. The couple is the originator of the message.

I think you are making a mistake here.  Regardless of who originates the message, 303 Creative says that the government cannot coerce someone into speaking that message.  From the syllabus of the decision:

Quote

Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide.  As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriages she does not.  6 F. 4th 1160, 1178.  Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.”  Turner Broadcasting System, Inc. v. FCC, 512 U. S. 633, 642.  Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting ideas about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. 6 F. 4th, at 1178.  But while the Tenth Circuit thought that Colorado could compel speech from Ms. Smith consistent with the Constitution, this Court’s First Amendment precedents teach otherwise.

This point was addressed in the dissenting Tenth Circuit opinion in 303 Creative, authored by Chief Judge Tymkovich (whose First Amendment jurisprudence was, in hindsight, superior to that of the majority of the Tenth Circuit) :

Quote

B. CADA Compels Expressive Speech

The Supreme Court's repeated, emphatic disapprobation of compelled expressive speech leaves little room for other conclusions. So it is all the more troubling when, in a case where the parties have stipulated that Ms. Smith's work is expressive speech—"[the] custom wedding websites will be expressive in nature "—the majority decides that its compulsion is constitutional.
...
{T}he majority does not afford Ms. Smith's pure speech any protection, endorsing CADA's compulsion of both speech and silence. If Ms. Smith creates wedding websites for opposite-sex couples, CADA compels her to create wedding websites for same-sex couples.
...

{Colorado contends that} all that is required to force them to accommodate a customer's request if it relates to the customer's protected class status:

[CADA] requires commercial actors to offer specific goods and services to customers regardless of protected class status only ‘if, and to the extent[,]’ the merchant willingly provides those goods and services to the general public. ... That those goods and services may involve the vendor's creative or expressive skill does not change this analysis.

Appellee Br. at 46 (emphasis added). The majority agrees, declaring that "unique  goods and services are where public accommodation laws are most necessary to ensuring equal access." Maj. Op. at 1181. It appears that the path to "coercive elimination of dissent" is steep—and short. Barnette , 319 U.S. at 641, 63 S.Ct. 1178.

Moreover, CADA compels silence. Ms. Smith would like to post on her website an honest, straightforward message about why she will only make wedding websites for weddings involving one man and one woman. Endorsing same-sex marriage is a message Ms. Smith will not create for any client. But CADA prevents her from informing clients of this. 

The issue here is compelled speech, and I am heartened that the Supreme Court resisted broad societal impulses calling for - even demanding - such an expansive and coercive use of governmental authority.

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

In fact, without the request from a same-sex couple, the website wouldn't come into existence.

Well, no.  Anyone could make "the request" for the website.  This is one of the central reasons why the "discrimination against gays" line of reasoning just doesn't work here.

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

Let's ignore for just a moment the fact that it has become clear that this case centered on a fake request. The person who is identified in the case as having made the request never asked for the website, is not gay, and is in a happy heterosexual marriage.

First, Lawrence v. Texas was likely based on contrived circumstances.  Does that undermine the constitutional conclusions reached in that decision?

Second, I'm not sure whom you are referencing with this "fake request" thing.  Ms. Smith, the proprietor of 303 Creative, filed a lawsuit seeking "an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs," which suit was entirely prospective.  "In her lawsuit, Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use CADA to compel her to create websites celebrating marriages she does not endorse" (emphasis added).  The facts stipulated to by Smith and the State were prospective (emphases added) :

Quote

 

• Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.”
• Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. Id., at 186a–187a. 
• Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.”  Id., at 187a. 
• To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Id., at 190a. 

 

So what am I missing here?  Where can I find information about this "fake request"?

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

Quote

This doesn't sound like anything that Ms. Smith is going to do.  I have no experience hiring a vanity press but I'm pretty sure that they don't change the text.  They don't pick the images that go in the book.  They might decide on the font, but I'm assuming the customer has a say in it.  The work to publish the book isn't speech.

And the work to publish a website isn't speech either. Now, perhaps you can explain why we should consider it speech. Who is their audience? Perhaps you could explain (using speech act theory) what role Ms. Smith actually plays in the speech? Is she the author? The animator? The principle?

No need for us to speculate.  There is ample case law about expressive speech (see, e.g., here), compelled speech (see here), etc.

Suffice it to say, I think your assertion is incorrect.  From the syllabus (emphasis added) :

Quote

Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public.  Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms.  It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment. 

Even the Tenth Circuit acknowledged this (also from the syllabus) (emphasis added) :

Quote

Ultimately, the district court ruled against Ms. Smith. 405 F. Supp. 3d 907, 912 (Colo. 2019).  So did the Tenth Circuit. 6 F. 4th, at 1168.  For its part, the Tenth Circuit held that Ms. Smith had standing to sue.  In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id., at 1172–1175. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Id., at 1174.  Before us, no party challenges these conclusions.

From the Tenth Circuit decision itself: "Appellants’ creation of wedding websites is pure speech."

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

No. What you are describing is not what a ghostwriter does at all. Most importantly, as the link suggests:

Ghostwriters don't get credit for what they do. At all. It cannot be considered their speech - it is work-for-hire.

Are you suggesting that "work for hire" speech is not "speech" entitled to First Amendment protections (including protections against being compelled by the goverment to speak it)?  If so, could you point to a legal citation for this proposition?

From the Tenth Circuit decision (emphases added) :

Quote

Appellants’ own speech is implicated even where their services are requested by a third-party. In Hurley , the Supreme Court recognized a parade organizer's Free Speech interests, despite the fact that the organizer lacked a "particularized message" or that the speech would be initially generated by the participants, and not the organizer. Hurley , 515 U.S. at 569–70, 115 S.Ct. 2338. The speech element is even clearer here than in Hurley because Appellants actively create each website, rather than merely hosting customer-generated content on Appellants’ online platform. Compare Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ("A newspaper is more than a passive receptacle or conduit for news, comment, and advertising."), with FAIR, 547 U.S. at 64, 126 S.Ct. 1297 ("In this case, accommodating the military's message does not affect the law school's speech, because the schools are not speaking when they host interviews and recruiting receptions."), and PruneYard Shopping Ctr. v. Robins , 447 U.S. 74, 85, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (shopping center may be forced to "use his property as a forum for the speech of others").

Nor does a profit motive transform Appellants’ speech into "commercial conduct." See Colorado's Br. at 37. The First Amendment's protections against compelled speech are "enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers." Hurley, 515 U.S. at 574, 115 S.Ct. 2338. Thus, as the Supreme Court has recognized, for-profit businesses may bring compelled speech claims. See, e.g. , Tornillo, 418 U.S. at 254, 94 S.Ct. 2831 (for-profit newspaper cannot be compelled to accommodate political candidates’ "right of reply"); Pac. Gas and Elec. Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 9, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (utility company cannot be compelled to include critic's speech in utility company's billing envelopes).

Thoughts?

On 7/1/2023 at 3:06 PM, Benjamin McGuire said:

Many decades ago, when I worked in the newspaper industry, I spent a fair amount of time designing advertising. Why I did a full page ad for Smith's, was it my speech on that page?

I am focusing on publishing because their is little question over the nature of the printed material as a text that is capable of being speech. And no, the speechwriter's isn't their speech even if no one knows that they wrote about it. I could direct to you the technical literature on that subject if you want.

Ownership of speech is, I think, not germane to the issue at hand, namely, whether the government can compel speech.

Thanks,

-Smac

Edited July 3, 2023 by smac97

[Calm]

23 minutes ago, JarMan said:

You’ll almost certainly get “canceled” for it.

Depends on where you live or who your market is.  For some getting targeted to be “canceled” could be a financial benefit in that it draws attention to their business and their market is one that supports such discrimination. 

Edited July 3, 2023 by Calm

[Buckeye]

22 hours ago, Benjamin McGuire said:

It is irrelevant. If you reject any requests from gays (for whatever reason - the reason doesn't matter) - that's when it becomes discriminatory. If you reject all work with adulterers, regardless of their other characteristics, it isn't discrimination.

Ben, I see you’re getting heat from lots of posters. I’ll try not to gang up. You’re very civil and I appreciate your point of view. 

To briefly respond to your argument about protected classes, I agree that protected classes do have unique rights against discrimination, but those rights are still balanced against others. They apply strongly for offers of public goods (accommodation, etc) but should not apply to force speech against one’s conscience- religious or otherwise. 
 

Consider a Christian pastor who wishes to hire a Jewish baker to write on a cake “All those who do not accept Christ as their personal Savior are damned”. That’s a sincere belief and request. Christians are a protected class. The Jewish baker should still have a right of refusal because simply writing the message is an affront to their beliefs and causes them harm. 
 

Or consider an Asian-American who wants an African-American to write on the cake “Affirmative Action wrongfully discriminates against Asians”. Assume the baker supports AA (note that many African Americans don’t support it and for the record I still do). Should the baker be compelled to write a message he disagrees with just because race is a protected class? 

Edited July 3, 2023 by Buckeye

[smac97]

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

Quote

fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.

You are continue to avoid discussing the issues that I raise. The message isn't Ms. Smith's message.

First, I don't think this matters.  The issue is whether the government can compel her to speak the message.

Second, the issue is about Ms. Smith's speech.  Regardless of whether she is is speaking her thoughts/message or conveying someone else's thoughts/message, the government cannot compel her to say things she does not want to say.

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

It is the message of those that hire Ms. Smith. It doesn't matter how much editorial action Ms. Smith takes in working with that message. It still isn't her message. And no one who looks at such a web site would ever think, "Wow, I like Ms. Smith's message".

With respect, I disagree.  I addressed this back in 2018:

Quote

Quote

If a custom-designed cake for a straight wedding is decorateed and designed exactly the same as the custom-designed cake for a gay wedding, is the speech saying something different?

 

Yes.  Here's why: 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: 

Quote

“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:

Quote

"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:

Quote

“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:

Quote

"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:

Quote

"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.

Also likewise, if Ms. Smith doesn't like the way her artistic expression is to be used in a particular venue, in ways that she feels give the impression of her endorsement, then she should be entitled to refuse permission for such use.  That's not bigotry.  That's Ms. Smith recognizing the reality that the use of her artistic speech to publicize and celebrate a gay wedding gives the impression that she is endorsing that event.

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

The 10th decision largely ignored the issue.  

Well, no.  

From the Tenth Circuit decision (emphases added) :

Quote

Appellants’ creation of wedding websites is pure speech. The websites Appellants intend to offer "celebrate and promote the couple's wedding and unique love story" by combining custom text, graphics, and other media. Aplts.’ App. at 2-325 (¶¶ 81, 84). The websites consequently express approval and celebration of the couple's marriage, which is itself often a particularly expressive event. See Obergefell v. Hodges , 576 U.S. 644, 657, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) (recognizing "untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms"). Appellants’ custom websites are similar to wedding videos and invitations, both of which have also been found to be speech. See Telescope Media Grp. v. Lucero , 936 F.3d 740, 751–52 (8th Cir. 2019) (wedding videographers engaged in speech); Brush & Nib Studio, LC v. City of Phoenix , 247 Ariz. 269, 448 P.3d 890, 908 (2019) (custom wedding invitations are pure speech).
...

Appellants’ own speech is implicated even where their services are requested by a third-party. In Hurley , the Supreme Court recognized a parade organizer's Free Speech interests, despite the fact that the organizer lacked a "particularized message" or that the speech would be initially generated by the participants, and not the organizer. Hurley , 515 U.S. at 569–70, 115 S.Ct. 2338. The speech element is even clearer here than in Hurley because Appellants actively create each website, rather than merely hosting customer-generated content on Appellants’ online platform. Compare Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ("A newspaper is more than a passive receptacle or conduit for news, comment, and advertising."), with FAIR, 547 U.S. at 64, 126 S.Ct. 1297 ("In this case, accommodating the military's message does not affect the law school's speech, because the schools are not speaking when they host interviews and recruiting receptions."), and PruneYard Shopping Ctr. v. Robins , 447 U.S. 74, 85, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (shopping center may be forced to "use his property as a forum for the speech of others").

Nor does a profit motive transform Appellants’ speech into "commercial conduct." See Colorado's Br. at 37. The First Amendment's protections against compelled speech are "enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers." Hurley, 515 U.S. at 574, 115 S.Ct. 2338. Thus, as the Supreme Court has recognized, for-profit businesses may bring compelled speech claims. See, e.g. , Tornillo, 418 U.S. at 254, 94 S.Ct. 2831 (for-profit newspaper cannot be compelled to accommodate political candidates’ "right of reply"); Pac. Gas and Elec. Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 9, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (utility company cannot be compelled to include critic's speech in utility company's billing envelopes).

Thoughts?

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

Whether or not it was speech belonging to Ms. Smith, the 10th decided that the law requiring Ms. Smith to provide web services to a gay couple just like any other couple was constitutional because Ms. Smith was denying services to a suspect class.

Except that Colorado stipulated that Ms. Smith was doing nothing of the sort.  She proposes "denying services" (associated with same-sex marriages) regardless of who requests them.  Colorado stipulated to this, and I do not think we can retroactively recharacterize the facts of the case as you do here.

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

And in the dissent from the U.S. Supreme Court, this is brought up:

Quote

Crucially, the law “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent,” the company offers “such speech” to other customers. FAIR, 547 U. S., at 62. Colorado does not require the company to“speak [the State’s] preferred message.” Ante, at 19. Nor does it prohibit the company from speaking the company’s preferred message. The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman. Brief for Respondents 15. (Just as it could offer only t-shirts with such quotations.) The company could also refuse to include the words “Love is Love” if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics.

 

Justice Gorsuch (who, as I have previously noted, authored the Bostock opinion), addresses this point (pp. 18-19) (emphases added) :

Quote

Colorado suggests that this Court’s decision in FAIR supports affirmance.  See also post, at 25–26 (opinion of SOTOMAYOR, J.) (making the same argument). In FAIR, a group of schools challenged a law requiring them, as a condition of accepting federal funds, to permit military recruiters space on campus on equal terms with other potential employers.  547 U. S., at 51–52, 58. The only expressive activity required of the law schools, the Court found, involved the posting of logistical notices along these lines:  “‘The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.’”  Id., at 61–62. And, the Court reasoned, compelled speech of this sort was “incidental” and a “far cry” from the speech at issue in our “leading First Amendment precedents [that] have established the principle that freedom of speech prohibits the government from telling people what they must say.”  Ibid.; see also NIFLA, 585 U. S., at ___ (slip op., at 8).

It is a far cry from this case too. To be sure, our cases have held that the government may sometimes “requir[e] the dissemination of purely factual and uncontroversial information,” particularly in the context of “commercial advertising.” Hurley, 515 U. S., at 573 (internal quotation marks omitted); see also NIFLA, 585 U. S., at ___ (slip op., at 8); Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795–796 (1988).  But this case involves nothing like that. Here, Colorado does not seek to impose an incidental burden on speech. It seeks to force an individual to “utter what is not in [her] mind” about a question of political and religious significance. Barnette, 319 U. S., at 634. And that, FAIR reaffirmed, is something the First Amendment does not tolerate.  No government, FAIR recognized, may affect a “speaker’s message” by “forc[ing]” her to “accommodate” other views, 547 U. S., at 63; no government may “‘alter’” the “‘expressive content’” of her message, id., at 63–64 (alteration omitted); and no government may “interfer[e] with” her “desired message,” id., at 64.

Thoughts?

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

and:

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Once these features of the law are understood, it becomes clear that petitioners’ freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws. FAIR, 547 U. S., at 60; Hishon, 467 U. S., at 78; Runyon, 427 U. S., at 176. Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks.)

The distinction is quite reasonable, in my opinion.

I think it is quite unreasonable.  Compelling someone to speak X, where X contravenes her personal and religious beliefs, is a significant burden.

Telling Ms. Smith that the government will allow her to disagree with X over there but require her to endorse and celebrate X over here is a significant burden.

Telling Ms. Smith that the government can force her to either A) speak words she does not want to speak, or B) shutter her business ("the company need not hold out its goods or services to the public at large") is a significant burden.

I find Justice Sotomayor's reference to Steven Spielberg to be hugely ironic.  He has never been compelled by the government to make a movie, but nor has the government ever put him out of business should he decline to speak things he does not want to speak.  Mr. Spielberg has that right.  And Ms. Smith now has it, too (notwithstanding the best efforts of the totalitarian forces in the execrable government of Colorado).

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

The majority in this case didn't really address this either. Instead, they simply argued that free speech claims supersede any claims of discrimination against a suspect class.

Citation, please.  I'm not seeing this.

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

And as long as we are willing to recognize that any work that can be considered expressive can be denied people based on what was previously protected characteristics and if we are okay with that, then this is a good thing.  People can now deny services to LDS Church members as long as the services involve some sort of expressive effort. Are you okay with this?

303 Creative does not stand for such a proposition.

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

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Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return

The dissent addresses this.

So did the Tenth Circuit, calling Ms. Smith's speech "pure speech."

The SCOTUS majority opinion in 303 Creative also addressed this:

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Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”  Id., at 181a; see also post, at 33 (opinion of SOTOMAYOR, J.) (emphasizing Ms. Smith’s “commercial” activity).  But none of that makes a difference.  Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return?  Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech.  This fact underlies our cases involving everything from movie producers to book publishers to newspapers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497–503; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 114–116 (1991); Grosjean v. American Press Co., 297 U. S. 233, 240–241, 249 (1936).

Thoughts?

On 7/2/2023 at 6:26 PM, Benjamin McGuire said:

But what the Supreme Court has just done is to allow such a speechwriter to categorically reject writing speeches for LDS members (regardless of the subject matter).

No, it has not.  "Nor does the dissent’s reimagination end there. It claims that, 'for the first time in its history,' the Court 'grants a business open to the public' a 'right to refuse to serve members of a protected class.' Post, at 1; see also id., at 26, n. 10, 35. Never mind that we do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) 'work with all people regardless of . . . sexual orientation.'"

Thanks,

-Smac

Edited July 4, 2023 by smac97