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

[webbles]

17 minutes ago, Buckeye said:

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? 

I think this would come down to how "incidental" the speech is.  If the baker bakes a bunch of common cakes (like you'd find at Costco or any other grocery store) and they write the message without any special work, I think the baker would still be required to do it.  It is similar to asking a printer to print a message.  The printer and baker aren't really putting much of their own speech into it.  But if the baker is doing something like Ace of Cakes where they create a cake that they feel matches what the client wants, then they may be protected (depending on how much speech the courts see in baking custom cakes).

[smac97]

17 minutes ago, webbles said:

I think this would come down to how "incidental" the speech is.  If the baker bakes a bunch of common cakes (like you'd find at Costco or any other grocery store) and they write the message without any special work, I think the baker would still be required to do it.  It is similar to asking a printer to print a message.  The printer and baker aren't really putting much of their own speech into it.  But if the baker is doing something like Ace of Cakes where they create a cake that they feel matches what the client wants, then they may be protected (depending on how much speech the courts see in baking custom cakes).

I think the "Spence Test" is going to be getting more attention in the near future, as there is an ongoing effort to use things like public accommodations laws to coerce both regular and "expressive" speech.

This is a good primer:

Quote

The Spence Test is a test used in First Amendment cases to determine whether forms of expressive conduct are “expressive” enough to warrant First Amendment protection. The test derives from the U.S. Supreme Court decision bearing its name, Spence v. Washington (1974).

Spence Test developed after student displayed upside-down flag in Vietnam protest

In Spence v. Washington, the Supreme Court ruled that college student Harold Ormond Spence had a First Amendment right to display an American flag upside down with a peace symbol affixed to it. Spence displayed the flag to express his opposition to the U.S. bombing of Cambodia during the Vietnam War and the shooting of students at Kent State University.

Authorities, however, charged Spence under a Washington state law prohibiting “improper use” of the American flag.

Expressive conduct is protected under First Amendment if message is intended, understood

The Court grappled with whether Spence engaged in expression deserving of First Amendment protection. In its decision, the Court wrote: “An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” This passage formed the basis for what came to be known as the “Spence Test.”

In another flag case, Texas v. Johnson (1989), the Court quoted the language from the Spence decision. The result seemed to elevate the language in Spence to a more formal two-part test. In order to receive First Amendment protection, there must be (1) an intent to convey a particularized message and (2) a reasonable likelihood that it would be understood.

Thanks,

-Smac

[blackstrap]

Was this case actually based on a hypothetical because the initial website request was a lie ? 

[webbles]

1 hour ago, blackstrap said:

Was this case actually based on a hypothetical because the initial website request was a lie ? 

It was always based on a hypothetical.  The website request that you are referencing happened the day after the lawsuit was filed.  It was not the trigger of the lawsuit.  In determining standing, the 10th Circuit didn't reference the fake request.  See pages 10-19 from the 10th Circuit's opinion - https://law.justia.com/cases/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.html

Here's a relevant paragraph:

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 Appellantsoffer 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.

And another one:

Quote

In short, on the summary-judgment record presented, we conclude that Appellants show an injury in fact because they intend to discriminate in a manner that is arguably proscribed by CADA, and they show a credible fear that Colorado will enforce CADA against them.

 

[JarMan]

7 hours ago, Calm said:

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. 

If discrimination ends up being a financial benefit, like it probably was for Harvard, then so be it. I just don’t think this is very likely anymore for most discrimination because of pressure from the media, including social media. 

[The Nehor]

22 hours ago, JarMan said:

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

Worked in the Jim Crow era. Oh wait, no, it didn’t.

Why are you championing the return of segregation?

[bluebell]

4 minutes ago, The Nehor said:

Worked in the Jim Crow era. Oh wait, no, it didn’t.

Why are you championing the return of segregation?

It didn't work to well for the us in the 1800s, or the Jews right up until a couple of decades ago either, so maybe let's not do it again.  You can't let mob rule dictate people's rights.  And "cancel culture" is just mob rule.

[The Nehor]

22 minutes ago, bluebell said:

And "cancel culture" is just mob rule.

Cancel culture is just normal social shaming that has gone on throughout human history. When it happened to a bunch of privileged snowflakes they couldn’t understand what was going on and assumed it was something new so they ran to their safe spaces and started crying about it.

[bluebell]

9 minutes ago, The Nehor said:

Cancel culture is just normal social shaming that has gone on throughout human history. When it happened to a bunch of privileged snowflakes they couldn’t understand what was going on and assumed it was something new so they ran to their safe spaces and started crying about it.

I think that's the thing though.  If it's fine when it happens to privileged snowflakes but bad when it happens to the unprivileged, then that's a double standard that isn't rational.  It's either always bad or always good.  It's not bad when it happens to people you agree with and good when it happens to people you don't agree with. 

If all that makes it good or bad is how the majority (or the people who have the power) feels about it, then that's mob rule.  Mob rule is people doing whatever they want to get their way, and take away power from people they don't agree with, without interference from the government (which seems like what JarMan was describing).

[Stormin' Mormon]

 

55 minutes ago, The Nehor said:

Cancel culture is just normal social shaming that has gone on throughout human history. When it happened to a bunch of privileged snowflakes they couldn’t understand what was going on and assumed it was something new so they ran to their safe spaces and started crying about it.

What has made cancel culture toxic isn't the change in targets  but the change in scale. The social shaming that you say was normal throughout all history happened in communities, within groups of people who knew each other, understood the nuances of life in their particular culture, respected each other, could rehabilitate the canceled.

Modern cancel culture became toxic when it went online. Now it's strangers naming and shaming, strangers who have no understanding of or interest in social context or nuance, who move on to the next target once their cancel goal is achieved, rather than lovingly rehabilitate the canceled back into the community. 

Your lack of empathy for the canceled you don't know personally is a perfect example of why modern cancel culture is toxic.

[The Nehor]

20 minutes ago, Stormin' Mormon said:

 

What has made cancel culture toxic isn't the change in targets  but the change in scale. The social shaming that you say was normal throughout all history happened in communities, within groups of people who knew each other, understood the nuances of life in their particular culture, respected each other, could rehabilitate the canceled.

Modern cancel culture became toxic when it went online. Now it's strangers naming and shaming, strangers who have no understanding of or interest in social context or nuance, who move on to the next target once their cancel goal is achieved, rather than lovingly rehabilitate the canceled back into the community. 

Your lack of empathy for the canceled you don't know personally is a perfect example of why modern cancel culture is toxic.

No, it has always happened. Politicians have always been resigning in disgrace and people have always become social pariahs. It might be faster now.

The idea that people were in general trying to lovingly rehabilitate pariahs is not really accurate.

You are right. I don’t empathize well with racists and homophobes that scream loudly about how they were cancelled. This cancelling is really not working that well. They still somehow keep getting their message out.

[The Nehor]

1 hour ago, bluebell said:

I think that's the thing though.  If it's fine when it happens to privileged snowflakes but bad when it happens to the unprivileged, then that's a double standard that isn't rational.  It's either always bad or always good.  It's not bad when it happens to people you agree with and good when it happens to people you don't agree with. 

If all that makes it good or bad is how the majority (or the people who have the power) feels about it, then that's mob rule.  Mob rule is people doing whatever they want to get their way, and take away power from people they don't agree with, without interference from the government (which seems like what JarMan was describing).

I don’t agree. I think social ostracism is necessary. If done because the person is a hateful demagogue good, ostracize them. If it is because they are advocating for the forgotten or ignored and people find this dangerous to themselves or their position don’t.

It is not mob rule. Mob rule does a lot more than deplatform people.

[JarMan]

2 hours ago, The Nehor said:

Worked in the Jim Crow era. Oh wait, no, it didn’t.

Why are you championing the return of segregation?

I'm championing the end of the government telling private actors who to associate with. Jim Crow was government-enforced segregation, which is the exact opposite of what I'm championing (but you knew that).  This would actually allow Harvard to have affirmative action admissions policies.

[Stormin' Mormon]

20 minutes ago, The Nehor said:

You are right. I don’t empathize well with racists and homophobes that scream loudly about how they were cancelled. This cancelling is really not working that well. They still somehow keep getting their message out.

 

But it's almost never so black and white. Someone in southern Arizona should be judged by the norms of southern Arizona culture anf not by the norms of New York City.

I spent the first five years of my career working on a large Indian reservation, and got laughed at when I referred to the people there as "Native Americans." "Dude," one medicine man told me, "we're Indians."

But in some corners of the interwebs, I could be cancelled for using the term "Indians" because the values of some other place on the other side of the country says that that term is insensitive and racist. 

I DO empathize when people I care about say thoughtless or insensitive things. But unlike you, I don't jump to the conclusion that a momentary lapse of judgement or an unthinking comment means that someone I love is irredeemable. People often speak before they think, or express themselves in clumsy ways. I give to others the same latitude, the same benefit of the doubt that I would want for myself if I express myself inartfully.

To be so certain of one's own righteousness, to be so certain of the depravity of another, is the height of hubris. You must be a barrel of fun at family reunions.

 

Edited July 4, 2023 by Stormin' Mormon

[bluebell]

1 hour ago, The Nehor said:

I don’t agree. I think social ostracism is necessary. If done because the person is a hateful demagogue good, ostracize them. If it is because they are advocating for the forgotten or ignored and people find this dangerous to themselves or their position don’t.

It is not mob rule. Mob rule does a lot more than deplatform people.

If the majority of people in power (and I’m not just talking about political power, but social power as well) were capable of judging good as good and evil as evil, then I would agree with you. But it seems pretty clear that they aren’t.  Society has shown that people in power are notoriously bad at being fair in general.  They use their power to make their world better, rather than to make the world better.  Too many biases and no standard to judge by other than personal beliefs and opinions.

Your opinions certainly can’t be used as the standard for when it’s good to socially ostracize. My opinions certainly can’t be used as the standard either. Whose standard do we use then?  Well, regardless of what standard should be used, the standard that ends up being used is the belief system of whoever is in power.  I’m not sure if that’s what you call a self defeating system, or circular logic, or some thing else. But whatever it’s called, if it goes unchecked it ends up being the majority deciding what is “right” and then the majority enforcing their “right” until the minority either capitulates or is socially (and every now and then actually) exterminated.

I agree that mob rule does a lot more than de-platform people, but mob rule doesn’t starts off with the really bad stuff. It works its way up. De-platforming those who disagree with them is one way the majority comes into power.  The bad stuff will then be a consequence of that consolidation.

Edited July 5, 2023 by bluebell

[Calm]

9 minutes ago, bluebell said:

Whose standard do we use then?

Mine of course!  

[bluebell]

51 minutes ago, JarMan said:

I'm championing the end of the government telling private actors who to associate with. Jim Crow was government-enforced segregation, which is the exact opposite of what I'm championing (but you knew that).  This would actually allow Harvard to have affirmative action admissions policies.

I think where your argument falls apart is that it was the private actors who insured their government supported the Jim Crow laws. The laws were not put in place despite what the people wanted, they were put in place because the people wanted them. If the government had dissolved, the Jim Crow laws would have remained and would have largely been enforced force the way they had always been enforced.  

in fact, the Jim Crow laws are mostly just holdover beliefs of the slave states before the Civil War. When the south lost the Civil War, their government dissolved, and yet their beliefs about white supremacy and black inferiority continued in the form of Jim Crow laws.

To attempt to blame the government for Jim crow laws is to greatly misunderstand where the government got its power. It got its power completely from private actors.

[Chum]

2 hours ago, bluebell said:

If it's fine when it happens to privileged snowflakes but bad when it happens to the unprivileged, then that's a double standard that isn't rational.  It's either always bad or always good. 

Mass pressure gets applied to the powerful because they ignore lesser approaches. It's use against the weak and vulnerable is likely cruel. 

[JarMan]

1 hour ago, bluebell said:

I think where your argument falls apart is that it was the private actors who insured their government supported the Jim Crow laws. The laws were not put in place despite what the people wanted, they were put in place because the people wanted them. If the government had dissolved, the Jim Crow laws would have remained and would have largely been enforced force the way they had always been enforced.  

in fact, the Jim Crow laws are mostly just holdover beliefs of the slave states before the Civil War. When the south lost the Civil War, their government dissolved, and yet their beliefs about white supremacy and black inferiority continued in the form of Jim Crow laws.

To attempt to blame the government for Jim crow laws is to greatly misunderstand where the government got its power. It got its power completely from private actors.

You're making my point for me. We can't trust the government to tell us who to associate with. The cure is to limit the government's power, not give it more. 

[The Nehor]

2 hours ago, JarMan said:

I'm championing the end of the government telling private actors who to associate with. Jim Crow was government-enforced segregation, which is the exact opposite of what I'm championing (but you knew that).  This would actually allow Harvard to have affirmative action admissions policies.

I was talking about the era. The Jim Crow laws were a desperate attempt to force the continuation of traditions of oppression and discrimination that were previously enforced by society. Now federal law was telling them to stop being bigots so they tried to preserve the status quo with bigoted laws.

Edited July 5, 2023 by The Nehor

[The Nehor]

1 hour ago, bluebell said:

If the majority of people in power (and I’m not just talking about political power, but social power as well) were capable of judging good as good and evil as evil, then I would agree with you. But it seems pretty clear that they aren’t.  Society has shown that people in power are notoriously bad at being fair in general.  They use their power to make their world better, rather than to make the world better.  Too many biases and no standard to judge by other than personal beliefs and opinions.

Your opinions certainly can’t be used as the standard for when it’s good to socially ostracize. My opinions certainly can’t be used as the standard either. Whose standard do we use then?  Well, regardless of what standard should be used, the standard that ends up being used is the belief system of whoever is in power.  I’m not sure if that’s what you call a self defeating system, or circular logic, or some thing else. But whatever it’s called, if it goes unchecked it ends up being the majority deciding what is “right” and then the majority enforcing their “right” until the minority either capitulates or is socially (and every now and then actually) exterminated.

I agree that mob rule does a lot more than de-platform people, but mob rule doesn’t starts off with the really bad stuff. It works its way up. De-platforming those who disagree with them is one way the majority comes into power.  The bad stuff will then be a consequence of that consolidation.

Of course it is a trainwreck but removing all forms of ostracism is a case of the cure being worse than the disease.

[Stormin' Mormon]

7 minutes ago, The Nehor said:

Of course it is a trainwreck but removing all forms of ostracism is a case of the cure being worse than the disease.

Agreed, but ostracism from people who have no stake in the community, nor accountability for false accusations has also proved to be a cure worse than  the disease. What makes cancel culture so bad isn't that it ostracizes people who deserve it, but rather that there is an irresponsibly high rate of false positives, and no mechanism for correction or retraction.

[The Nehor]

48 minutes ago, Stormin' Mormon said:

Agreed, but ostracism from people who have no stake in the community, nor accountability for false accusations has also proved to be a cure worse than  the disease. What makes cancel culture so bad isn't that it ostracizes people who deserve it, but rather that there is an irresponsibly high rate of false positives, and no mechanism for correction or retraction.

I haven’t seen a lot of these false positives. And some that claimed to be false positives just weren’t.

[Stormin' Mormon]

5 minutes ago, The Nehor said:

I haven’t seen a lot of these false positives. And some that claimed to be false positives just weren’t.

Well, yeah, if your definition of "racist" or "sexist" is unreasonably broad, you won't see many false positives. 

If you're too quick to condemn others for their moral failings, you'll only ever see people who deserve the ostracism you are too ready to heap upon them.

I can't convince you that a one-off comment from 15 years ago counts as a false positive. I can't convince you that a person is not their worst day, their most unguarded moment. I can't convince you that people, all people, are complex messes of  contradictions. 

But to belive otherwise, just seems like a really unfulfilling way to live. 

[Stormin' Mormon]

Lots of examples of false positives in this article from Forbes:

https://www.forbes.com/sites/evangerstmann/2020/09/13/cancel-culture-is-only-getting-worse/?sh=5956de1f63f4