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Court Allows Lawsuit Against Ideological Group for Discriminatory Rejection of Noncommercial Ad in Its Publication

The National Lawyers Guild refused to run a congratulatory advertisement submitted by an Israeli organization -- the organization is suing for discrimination in "public accommodations," and a New York court has let the case go forward.

In Bibliotechnical Athenaeum v. National Lawyers Guild, Inc., 2018 WL 1172597 (N.Y.Sup. Mar. 6, 2018), the National Lawyers Guild -- a "progressive bar association" -- held an awards banquet. For the banquet, the Guild printed a program, the Dinner Journal, which

consists of 40 pages. With the exception of a cover page, a two-page introduction, a program agenda, and seven pages of honoree biographies, the remaining 25-plus pages consist of advertisements. Most of the advertisements congratulate one or more of the honorees, some simply list the name and address of the advertiser without any accompanying message, and some contain what could be considered statements or messages referencing current and historic political issues....

The Athenaeum, an Israeli organization, tried to submit a 3" x 3", which was to read:

Bibliotechnical Athenaeum
Congratulations to the Honorees
4 Shlomtzion St. Elazar
Gush Etzion 9094200
State of Israel

But the Guild e-mailed the Athenaeum to say that it would reject the ad because of the Guild's "resolution barring [Defendants] from accepting funds from Israeli organizations." The Athenaeum sued, claiming this constituted public accommodation discrimination based on national origin in violation of New York state and city law.

The court agreed that this violated the law. In an earlier decision in the same case, the court noted that the law defines "person" broadly, to include associations as well as individuals. And in this decision, the court held that

the phrase "public accommodation" [under the City and State Human Rights Laws] has been interpreted broadly since the statutes were first enacted, and ... the annual dinner banquet fell squarely within its broad scope. Likewise, ... the Guild's offer to advertise in the Dinner Journal was open to the public and ... Defendants refused to accept the advertisement based only on Plaintiff's national origin. In fact, Defendants did not controvert Plaintiff's assertion that they refused the advertisement solely because Plaintiff was an Israeli corporation.

The court went on to refuse to dismiss the case on First Amendment grounds:

Defendants place much reliance on Miami Herald Publ'g Co. v Tornillo (1974), in which the Supreme Court struck down Florida's "right of reply" statute requiring newspapers to print a reply if a published article assailed a political candidate's record or character. Several courts have relied on Tornillo to dismiss lawsuits against newspapers that have refused to print advertisements.... [But] because Defendants were not traditional newspapers, this case appear[s] to fall outside Tornillo's scope....

[N]otwithstanding Tornillo, Defendants' actions may still be entitled to First Amendment protection since requiring Defendants to publish Plaintiff's advertisement might be considered compelled speech... Defendants argue that the Dinner Journal is more than just a phone-book style compilation of biographies and information, but rather a publication filled with assertions of political opinions. Defendants explain that the Dinner Journal highlights several of the honorees' work on behalf of Palestinians and shows that many of the advertisers supported this work. For example, the Arab American Action Network placed an advertisement "salut[ing] the NLG and [one of the honorees] for their incredible work defending the rights of Palestinians in Chicago." Similarly, one of the advertisements congratulates an honoree for "selflessly supporting ... the struggle of the Palestinian people, and other anti-racist and anti-imperialist struggles." The Dinner Journal contains several other advertisements of this nature.

Set against this background, Defendants' counsel contends that "the proposed ad submitted by Plaintiff with its controversial Gush Etzion address expressed its own political message in gross contradiction of the view of the National Lawyers Guild." In other words, by listing Gush Etzion as Plaintiff's address, Defendants argue that the proposed advertisement contained "controversial" information which they were entitled to reject.

Defendants' arguments, however, must be rejected, as this court cannot, at least on this record, take judicial notice of the controversial nature of settlements in the West Bank..... [A] court may take judicial notice of facts that are capable of "immediate and accurate determination by resort to easily accessible sources of indisputable accuracy." Whether denoting an address as being in Israel is controversial or noncontroversial does not fall into that category. Quite to the contrary, the issue of Israeli settlements in the West Bank is the very epitome of a topic that cannot be reduced to "indisputable accuracy."

Moreover, Defendants' discussion about settlements appears for the first time in counsel's memorandum of law. It goes without saying that a recitation by counsel is patently insufficient for purposes of showing that Defendants' actions were based upon the Guild's political opinions as opposed to a discriminatory motive.

Turning now to the merits of the First Amendment argument, I find that it is not a sufficient basis to dismiss the complaint at this stage.... In assessing whether an individual is being improperly required to engage in forced speech or expressive conduct, the Supreme Court has held that the threshold inquiry is whether the conduct allegedly compelled was sufficiently expressive so as to trigger First Amendment protections. Conduct, in turn, is considered inherently expressive when there exists " '[a]n intent to convey a particularized message' " as well as a likelihood that the intended " 'message [will] be understood by those who view[] it.' "

Under those standards, I cannot say on the papers before me that the complaint must be dismissed. Without having the benefit of discovery, it is questionable whether the proposed advertisement is forced speech. The advertisement, which simply stated that Plaintiff congratulated the honorees at the dinner and listed an address, is not so different from many of the others appearing in the Dinner Journal. It is therefore questionable whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws. In other words, it is not clear from the complaint or documentary evidence that the speech in question triggers First Amendment protections.

It bears repeating that this is a motion to dismiss. The allegations contained in the amended complaint, namely that Plaintiff was discriminated against on the basis of its national origin, must be deemed true for purposes of this motion. The pleadings are supported by an email, purportedly written by the "NLG National Office," which unequivocally states that the advertisement was being rejected on the basis of Plaintiff's national origin. While the Dinner Journal circumstantially evinces Defendants' political affiliations, it does not totally undermine Plaintiff's allegations or the email in question so as to establish a complete documentary defense.

In sum, this case may eventually turn on the First Amendment, but the issues presented on this motion must first be borne out through discovery before the court can make that determination....

In an earlier decision, the court also reasoned that "the New York Court of Appeals has long recognized that free speech restrictions are consistent with the First Amendment where they serve to protect against discrimination":

In N.Y. State Club Ass'n v City of New York (1987), a consortium of some 125 private clubs, many of whom were allegedly organized along national origin, religious, ethnic and gender lines, challenged the New York City Human Rights Law as soon as it was enacted. The Association argued that the law violated its members' right to free speech and association under the First Amendment. In rejecting that argument, the Court drew a distinction between the clubs' general activities and the specific practice of discrimination -- "The law evinces an intent not to dictate the selection policies or activities of the private clubs except to the extent necessary to ensure that they do not automatically exclude persons from membership or use of the facilities on account of invidious discrimination." The law also "employed the least restrictive means to achieve its ends" and "plaintiff has made no showing that its members' free speech rights will be abridged -- either in altering the policies or functions of the various organizations ... or in creating a chilling effect on the behavior of club members." More importantly, the Court held that "although plaintiff's constituent members have a right to free speech and to association, they lack the right to practice invidious discrimination ... in the distribution of important business advantages and privileges.... Any incidental intrusion on protected free speech rights accomplished by the local measure is no greater than is necessary to fulfill the State's legitimate purpose ...."

Yet the court's analysis strikes me as quite wrong. The Dinner Journal is a publication that is just as protected by the First Amendment as a newspaper. (The Supreme Court has long recognized that the freedom from compelled speech applies to all speakers, whether or not they are members of the institutional media.) The National Lawyers Guild has an absolute right to choose what not to publish in the Dinner Journal's pages; and whatever antidiscrimination law might say about clubs' decisions about whom to admit (see Roberts v. U.S. Jaycees (1983)), it can't limit speakers' decisions about what to include in their publications.

Nor does this extend just to speech that has been proved to be "controversial." It appears that the Guild refused the ad not because the address was in a West Bank settlement, but because the submitter was an Israeli organization. But that does not matter -- the Guild is entitled to exclude Israeli speech and not just speech from Israeli settlements.

The one possible complication is that here the Guild's e-mail seemed to stress its objection to the identity of the advertiser and not just the content of the advertiser's message (the e-mail said the Guild would not "accept[] funds from Israeli organizations"). In this respect, the case is different from Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), whether the St. Patrick's Day Parade organizers refused to allow a group from parading under a banner saying "Irish American Gay, Lesbian and Bisexual Group of Boston," but apparently didn't seek to exclude gays and lesbians generally from marching under other banners. Yet just as in Dale v. Boy Scouts of America (2000) the Court allowed the Boy Scouts from excluding a would-be assistant scoutmaster because he was gay (even if he wasn't going to say any pro-gay messages as part of his speech to scouts on behalf of the organization), so the National Lawyers Guild has a right to exclude messages from Israeli organizations.

And it also doesn't matter "whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws." Indeed, in the leading modern compelled speech case, Wooley v. Maynard (1977), the Court held that drivers couldn't be required to display "Live Free or Die" on their license plates even though (as the Wooley dissent noted) passersby wouldn't perceive drivers as endorsing the motto (as opposed to merely displaying a government-issued license plate). People and organizations can't be required to display or print speech that they disapprove of, regardless of whether observers would perceive them as endorsing the speech.

Legally unfounded speech restrictions and compulsions such as this one should indeed be dismissed early in the process, such as on a motion to dismiss, rather than waiting for future development of legally irrelevant facts. As readers might gather, I agree with the National Lawyers Guild on very little, and I don't agree as a policy matter with its boycott of Israelis. But its First Amendment argument here was quite right, and should have prevailed.

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  • Bob from Ohio||

    Mazel Tov.

    I love switching lawfare tactics against the left.

    When the target is a Stalinist organization like the National Lawyers Guild, its all the sweeter.

  • ||

    Agreed. I'm having a big dose of schadenfreude.

  • Eugene Volokh||

    Remember: When you gaze into the schadenfreude, the schadenfreude gazes into you. If the National Lawyers Guild loses here, that will make it even easier for other speakers (maybe even ones you like) to lose their freedom-from-compelled-speech claims as well.

  • BillyG||

    I agree, but I think the NLG has less of a leg to stand on than Masterpiece Cakeshop. The Cakeshop was't objecting to providing cakes to gays (individuals), it was objecting to providing cakes to a gay wedding (event). If the individuals wanted a birthday cake, the cakeshop would have provided one. In this instance, NLG has no objection to the message, indeed cannot realistically object to the message. NLG has instead come out as objecting to the individuals themselves.

    I cannot reconcile protecting NLG but not protecting the Cakeshop. I can however reconcile protecting both.

  • Josh R||

    BillyG,

    Per Christian Legal Society, objections to "conduct that is closely correlated with being homosexual [...] is targeted at more than conduct. It is instead directed toward gay persons as a class." Same-sex marriages are closely correlated with being gay, and thus the Cakeshop's objections to these marriages targets gay persons as a class.

  • ||

    That's ridiculous. That's akin to arguing that eating soul food is closely correlated with being black, and that not selling it in your store is discriminating against black customers.

  • BillyG||

    You're trying to extend of the meaning of targeting a behavior to targeting a class which predominantly practices the behavior. If the class was targeted, then there would be an objection to any form of service what so ever. Instead, its only because it is a same-sex wedding. Take the same individuals, change the event, and there'd of been no objection.

    What you're arguing is akin to saying a black bakery refusing to cater for a KKK meeting is discrimination against white people.

  • Josh R||

    Presumably the baker won't cater the KKK meeting because he objects to the KKK's racist conduct. Because that conduct is not closely correlated with being white. there isn't discrimination against whites as a class.

  • Brett Bellmore||

    Empirically, getting married isn't closely related with being 'gay', either. There are about a third of a million of them who have actually bothered to get married, out of a population about ten times that.

  • Josh R||

    In Christian Legal Society (see quote above), SCOTUS said that homosexual sex is closely correlated with being gay even though many gay people do not have sex. Moreover, SCOTUS also said, "A tax on wearing yarmulkes is a tax on Jews" even though a large number of Jews do not wear yarmulkes.

  • Ken Arromdee||

    When translated to Masterpice Cakeshop, "a tax on yarmulkes is a tax on Jews" becomes "speech about gay weddings is speech about gays". That doesn't help you because speech about gays is still legally protected. That comparison doesn't help you turn speech into conduct.

  • Josh R||

    Or perhaps, it is conduct about gay weddings is conduct about gays?

  • David Nieporent||

    racist conduct. Because that conduct is not closely correlated with being white

    That's not what SJWs tell me!

  • David Abrams||

    I am the attorney who filed the case against the National Lawyers Guild and I think you have summed up the distinction pretty well.

    I am not asking that the NLG be required to print any particular message and in fact the message at issue in this case is pretty unobjectionable -- "Congratulations to the Honorees." The NLG rejected the advertisement not because of the contents of the message but because of the national origin of the advertiser.

  • Rigelsen||

    And yet, you yourself argued that designing a wedding cake didn't actually comprise "designing" a wedding cake but merely a series of compellable non-expressive actions. So, I have to say this argument sounds a little hollow coming from you. (Never mind the whole, "government may not be able to force you to say something, but government can certainly force you to pay a third party to say something.").

    However, I do agree that the NLG, however illiberal they may be, still has rights to express or not express just how much they wish.

  • PoxOnBothYourHouses||

    EV: "When you gaze into the schadenfreude, the schadenfreude gazes into you."

    I'll have to remember that one.

    And it's correct that the NLG position is reasonably consistent with that of the cake baker, something that should horrify them as a "progressive" organization, if only it weren't their own ox that was being gored.

  • Rossami||

    Fair enough. How about "I hope the NLG wins but I also hope they bankrupt themselves now fighting rules and tactics that they foisted onto the rest of us."

  • Anon Y. Mous||

    It's a shame you didn't come to that realization before you said they have to bake the cake. Same rules for everyone.

  • Number 2||

    True, Professor. The NLG should win this case ... but only after they are compelled to expend the same heavy legal defense fees that they are so ready to impose on others.

    And after the NLG wins, those others will be able to use that decision as precedent to strike down the laws the NLG supports. That will be the true schadenfreude.

  • Sarcastr0||

    Consistency takes a second seat to owning the libs.

    You don't like liberals because you think they're working to make America a worse place.

    Going blindly tribal like this will not make the country a better place.

  • ||

    Liberals ARE working to make America a worst place. They're a group of petty, smug, Marxist totalitarians who seek to destroy the West, through third-world immigration and weakening of our traditional culture, in order to gain power and control.

  • apedad||

    And yet we're still the stongest, richest country with the current longest continuous form of govt. . . and all this in spite of the 20th century's progressive and civil rights successes:

    Womens' right to vote
    Child labor laws
    Civil Rights Act
    Miranda
    OSHA
    Reducing religion in the public arenas

    And despite current set backs (Trump and the spineless Repubs), the arc of progressivism will continue through the 21st century.

  • Sam Gompers||

    The norm for humans is to be lorded over and ruled by elites who believe they are better than every one else.

    Your arc of progressivism is just humanity regressing to the mean. The American Experiment in maximal human freedom and minimal governance is being eroded with your arc.

  • apedad||

    Hmmm. . . and here I thought the American Experiment was to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

    Don't see much about maximal human freedom and minimal governance.

  • Sam Gompers||

    You think the American Experiment is about a big central government that limits and restricts our freedom and liberty?

  • Sarcastr0||

    He said what he thinks it's about, and the 'size of government' (whatever that actually means) isn't specified in either direction.

  • ||

    Exactly. We became strong and rich in spite of those liberal "advances," not because of them.

  • FlameCCT||

    I hate to burst your self righteous bubble however Progressives opposed all of those laws except reducing religion which is consist with the Marxism based ideology.

  • JesseAz||

    May want to look at which parties were where on some of those... especially teh CRA.

    Child Labor Laws at the federal level were basically a nothing since most states had already passed those laws prior to the feds getting involved.

    Not sure how you can cheer on reducing public expression of religion as a civil rights win... just wow.

  • less lean eel son||

    JesseAzz- You are missing the point. It appears intentional. Apedad celebrates the separation of church and state, keeping religion out of the government, e.g. keeping prayer out of public meetings and stopping public officials imposing their religion and religious practices on others. You understand this to be a celebration of "reducing public expression" where it's really reducing public expression by public officials in their official capacity. It's an easy, basic distinction we are all aware of, no. Now were you being dishonest or do you genuinely not understand this?

    If you prefer Christan prayer from public officials, are you equally willing to have a town meeting opened with Islamic prayer or Satanist invocations?

  • less lean eel son||

    JesseAzz- You are missing the point. It appears intentional. Apedad celebrates the separation of church and state, keeping religion out of the government, e.g. keeping prayer out of public meetings and stopping public officials imposing their religion and religious practices on others. You understand this to be a celebration of "reducing public expression" where it's really reducing public expression by public officials in their official capacity. It's an easy, basic distinction we are all aware of, no. Now were you being dishonest or do you genuinely not understand this?

    If you prefer Christan prayer from public officials, are you equally willing to have a town meeting opened with Islamic prayer or Satanist invocations?

  • less lean eel son||

    You think they are a monolith, they are not. You are small minded and unimaginative, judging by your posts. You would have an argument to make if you were able to qualify your statements and say "some" at bad and do the bad things you don't like. But you look crazy, like a racist, holding these beliefs about everyone to your left.

  • Bob from Ohio||

    "Consistency takes a second seat to owning the libs."

    Works both ways. Its liberals who seek to deny cake bakers and photographers [and others] the legal protection for their religious freedom and freedom of speech rights.

    Your side started this, no good reason to not go along with the precedents.

    Want it stopped, stop doing [or supporting] it.

  • ||

    Precisely.

  • Sarcastr0||

    If I thought cake baking was speech just as this was, I would agree. But I do not. Thus, it's pretty easy to avoid hypocrisy.

    Your side started this, no good reason to not go along with the precedents
    Right, so your goal is not a better America but just owning libs.
    Way to go.

  • ||

    No. Our goal is to make the people who create these tyrannical laws suffer the consequences of them, which would hopefully lead to their repeal.

    "The best way to get a bad law repealed is to enforce it strictly."

  • FlameCCT||

    Really. The ads were available for sale to the public just as the cake is available to the public. Not to mention NLG has no creative input to produce the ad whereas finishing a wedding cake does require creativity on the part of the baker.

    IOW NLG is hoisted on their own petard!

  • JesseAz||

    What actual harm do you think the customers suffered by not having a baker work for them instead of the other 100 bakers in the town? Remember when laws used to be about actual harm and not group think and value signaling?

  • Sarcastr0||

    What actual harm did blacks suffer under separate but equal?

    The act of exclusionary discrimination is hurtful in and of itself.

  • jph12||

    "What actual harm did blacks suffer under separate but equal?"

    Are you sure this is the approach you want to go? Really?

  • Sarcastr0||

    If the analogy does not fit in this case, please explain

  • jph12||

    You need me to explain what concrete harms blacks suffered under separate but equal laws? I feel embarrassed for having to explain this to you, but things weren't actually separate but equal under separate but equal laws. Blacks did not have access to the same government services, housing, education, etc. and suffered from a myriad of other disadvantages as well. These disadvantages led to a whole movement to get rid of them. There is a wealth of information available that will go over things in greater detail.

    Plus, separate but equal laws were discriminatory laws imposed by the government. This is private discrimination. That's a pretty big difference.

    And if you are just concerned about feelings, where are you taking the baker's feelings into account? Being forced to do something against your religious beliefs is hurtful in and of itself.

  • Brett Bellmore||

    "The act of exclusionary discrimination is hurtful in and of itself."

    But that's not why separate but equal was stopped. The Constitution doesn't prohibit people from being "hurtful".

    It does prohibit unequal protection of the law, however.

    The reason separate but equal (In the case of things provided by the government!) was ruled unconstitutional was because it was never equal. Nobody who demanded "separate" really wanted "equal", they always wanted better for one group, and worse for the other.

    There's a similar dynamic going on with "reasonable gun regulation", of course, but the courts have yet to admit that.

  • Sarcastr0||

    Both Brett and jph12 need to go and read Brown v. Board again.

    Even if it were equal, that wouldn't have been enough.

  • jph12||

    "Both Brett and jph12 need to go and read Brown v. Board again.
    Even if it were equal, that wouldn't have been enough."

    That's not what you asked though, is it?

  • ||

    The difference was that blacks in the Jim Crow South literally could not buy groceries, clothes, or anything else ANYWHERE. It's not the same situation as someone not being able to shop at 1% of the wedding cake bakeries.

  • Allutz||

    This is a natural extension of Masterpiece Cakeshop if Colorado wins. Also a natural extension of Janus if the union prevails.

    The 1st Amendment is currently at a turning point in jurisprudence akin to the Commerce Clause in the late 1930s.

  • Longtobefree||

    Amen, and R.I.P. first amendment.

  • PoxOnBothYourHouses||

    From your lips to G*d's ear.

    Because sometimes a turning point is less than it seems.

  • Ridgeway||

    I particularly enjoy how a private organization hosting a private, and, I assume, invitation-only dinner is a "public accommodation" in my great state of NY.

    There are several weddings I would like to attend in the near future -- looks like I won't even need an invite! If I don't bring a gift, am I still entitled to the free meal and open bar?

  • FlameCCT||

    This was an advertisement that was opened to the public, not attendance required.

    Does it hurt being that ignorant Ridgeway?
    Or is it just normal Progressive lack of reading comprehension?

  • MonitorsMost||

    Eugene,
    While I agree the First Amendment analysis is wrong, I don't think the cited authority is very on-point. I don't think the issue has been addressed by a higher court: whether a publication is a public accommodation in soliciting and accepting advertisements.

    I have found a couple of district court cases which are close. In Zhang v. Baidu.com, 10 F.Supp.3d 433 (NYSD 2014), the court held that search engine results which blocked results based on race were speech and thus protected by the First Amendment. In NAAAOM vs Charter Communications, the court determined that plaintiff stated a claim for relief in alleging that Charter refused to carry the black-content channel constituted racial discrimination.

    The ruling does not surprise me in light of the desire to read First Amendment rights narrowly in regard to claims of discrimination.

  • TwelveInchPianist||

    "whether a publication is a public accommodation in soliciting and accepting advertisements."

    Why would this matter wrt the first amendment analysis?

  • DKWalser||

    There are some (too many, in my view) who believe commercial speech is afforded less 1st amendment protection than speech in other contexts. So, if the NLG is deemed to be operating a public accommodation (and is therefore subject to anti-discrimination laws) it cannot discriminate on the basis of national origin in the advertising it is willing to accept. Because commercial speech is a second class citizen deserving of little 1st amendment protections, the argument is that anti-discrimination law trumps any constitutional protections the NLG might have had in a non-commercial context.

  • MonitorsMost||

    Because if you're considered a public accommodation, than discrimination laws trump your First Amendment rights.

  • Brett Bellmore||

    ALL your rights, actually.

  • TwelveInchPianist||

    Huh. The national lawyers guild is one of the organizations participating in the de-platforming of Christina Hoff Sommers. It's extremely hypocritical that an organization that hates free speech so bad would whine about their own speech here. But this is still a bad decision, clearly they have the right to refuse to publish material that they disagree with.

  • Bob from Ohio||

    You would also think that "clearly" you have a right to bake cakes or not and take photos or not but alas, its not so clear.

  • FlameCCT||

    I agree with you however public accommodation laws disagree.

  • Stephen Lathrop||

    Volokh stands athwart the path of change yelling, "Stop!" Good idea this time. But looking increasingly like a beleaguered position, as the ever-more-powerful norms and customs of internet publishing take over from those of traditional media. Pretty much everybody online now thinks it's illegitimate censorship for a publisher to decide what does and does not go in his publication. Never mind that that completely misunderstands censorship; it's what they think, and they demand everyone else should think it too.

  • jph12||

    "Pretty much everybody online now thinks it's illegitimate censorship for a publisher to decide what does and does not go in his publication."

    Nonsense.

  • Stephen Lathrop||

    Ha. Ha, jph12. I'm sure you're completely on board if Facebook's publisher decides movement conservatism isn't his cup of tea, and henceforth deploys algorithms to suppress its appearance. Follow through for me, will you please, and say that's completely okay with you.

  • jph12||

    You have an odd sense of humor. But since you asked so nicely.

    Why would I care whether Facebook's publisher bans your personal boogeymen, the movement conservatives, or any other group? I don't go to Facebook for my news or political information. Plus, they already ban people and things that wouldn't be allowed under the First Amendment and I don't care about that either.

    So, really bang up job on your assessment, Stephen Lathrop. Outstanding work.

  • Stephen Lathrop||

    Plus, they already ban people and things that wouldn't be allowed under the First Amendment and I don't care about that either.

    Puzzled. What can that mean? As a private publisher, what can the 1A have to say about what they can or can not ban?

  • jph12||

    Puzzled. Are you pretending that you didn't ask me whether I would consider Facebook banning those super scary "movement conservatives" as illegitimate censorship?

    Just a bang up job here, Stephen Lathrop.

  • FlameCCT||

    It's a program for their event and the advertisement was opened to the public hence bringing it under the public accommodation laws just like bakers, photographers, et.al.

  • Eidde||

    "And it also doesn't matter "whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws.""

    Hoist by their own retard.

    Now maybe they'll realize that their own rights depend on a robust First Amendment, even at the cost of protecting the freedoms of people they don't like.

    But I'm not sure that lesson is going to sink in.

  • Eidde||

    They want to communicate a message that Israel and its businesses should be shunned. How can they communicate that message if they have to run Israel's ads, or the ads of Israeli businesses?

  • Longtobefree||

    Hate speech criminals gotta hate - - - - -

  • Michael P||

    Quite simply: They write that message in their program. Do you have any more dumb questions?

  • Eidde||

    Can the government compel you to include ads for CAIR in your posts?

  • Eidde||

    Anti-Semitism is bad.

    AD: The Ku Klux Klan invites you to its annual Klambake - our book club will be reading the Protocols of the Elders of Zion.

  • Rossami||

    Pet peeve alert (or maybe it's just a rant against autocorrect). Either way, it's petard - a small bomb used for breaching gates which was notoriously unreliable and could blow up the user almost as easily as the target.

  • Eidde||

    It's called a joke, son.

  • FlameCCT||

    I'm acquiring that saying:
    Hoisted by their own retard!

  • Tall Paul||

    Conceptually, this situation is not so different from the case of the baker who refuses to make gay wedding cakes.

  • Bored Lawyer||

    Some animals are more equal than others -- George Orwell.

  • Eugene Volokh||

    If you assume that the baker's wedding cakes are speech. I don't think so, though I think photographers' wedding photos are speech (as Dale and I argued in our Masterpiece Cakeshop brief, and some years before in our Elane Photography brief, which involved the wedding photographer). But it's clear that actual printed materials containing text messages are speech -- that's why the Guild's claim is stronger here (as would be the claim of, say, a religious organization that refused to allow messages it didn't want to include).

  • Sam Gompers||

    Just to clarify, you believe an already baked cake sitting on a shelf isn't speech, but a the baker spending weeks working with a client to create a bespoke cake for a particular event is speech.

    Right?

  • Eugene Volokh||

    Sam Gompers: No -- as our brief notes, we think cakes aren't speech (at least when they don't have writing or similar messages on them), whether handmade or off-the-shelf. We think photographs are speech.

  • DKWalser||

    The problem with your position is that a traditional wedding cake is immediately and almost universally recognized for what it is -- an expression of approbation for the couple's marriage. That is, a wedding cake doesn't need writing or symbols on it to communicate. The cake, itself, is the symbol. It is a symbolic expression of the couple's hopes and dreams for their wedded life together. The baker designs and creates that symbol for them. Should such symbolic speech be compelled?

    I know there is case law that says that cooking isn't speech, but a custom wedding cake is no mere pastry. It's sculpture, parts of which are edible. (On many large cakes, only the upper tiers are cake. The rest are rigid foam, decorated as if it were cake.) It's created to communicate a message in celebration of the union of two people. A good designer interviews the bride and groom, and incorporates the couple's passions into the design. Each element of the cake is chosen to reinforce the message the couple wishes to convey.

    My wife is a talented amateur. One of the couples she did a cake for liked to ride their motorcycles together. Among other elements, she incorporated stylized motorcycle wheels into the design. So, while the Court may ultimately rule differently, as a factual matter, I know that the creation of a custom wedding cake is a highly expressive activity.

  • Josh R||

    I think Eugene persuasively argues that if the custom wedding cake design is expressive then the hair stylist, jeweler, makeup artist, chef, tailor, landscaper and lighting designer can all claim their customization work for weddings are expressive.

    Also, whether custom wedding cake is a highly expressive activity is a matter of opinion, not fact.

  • Sam Gompers||

    You don't think a custom wedding dress would be expressive? Or custom jewelry?

  • Bob from Ohio||

    "I think Eugene persuasively argues that if the custom wedding cake design is expressive then the hair stylist, jeweler, makeup artist, chef, tailor, landscaper and lighting designer can all claim their customization work for weddings are expressive."

    So? The state should not force those people to violate their beliefs either.

  • Bored Lawyer||

    I don't find very convincing that other things might or might not be expressive. The issue is what do people think when they see that.

    Nor is it a matter of opinion. Expression depends on what most people think when they see it -- is it commonly viewed as sending a message.

    You can have speech without words -- symbolic speech is still speech. I have a hard time swallowing the notion that a three-tiered wedding cake does not express anything, but add the words 'Congratulations to the Bride and Groom' and suddenly it does.

    The gay movement has used a rainbow flag to symbolize support for it. No words. Can that be banned? Why is that speech and a wedding cake is not?

  • DKWalser||

    I think Eugene persuasively argues that if the custom wedding cake design is expressive then the hair stylist, jeweler, makeup artist, chef, tailor, landscaper and lighting designer can all claim their customization work for weddings are expressive.

    I understand the practical problems with 'having to draw the line somewhere'. This is a problem the courts largely created for themselves as they expanded the types of expression protected by the 1st amendment. We're now to believe that erotic dancers have greater 1st amendment protections than do wedding cake makers? A state cannot force its residents to drive cars with licence plates with the state motto, "Live Free or Die", but a state can compel a baker to make a cake that everyone seeing it knows conveys the message: Congratulations on your marriage!?

    Besides, as others have already pointed out, the line isn't that hard to draw. A wedding cake is inseparably linked with a wedding. Hair styles, clothing (except for the wedding dress itself), other items of refreshment and decoration, are not linked to a particular event and, therefore, cannot be said to convey a recognizable message. They're not speech in the same way a wedding cake is.

  • Josh R||

    On the same track as my comment below, is it only a wedding cake that is inseparably linked to a wedding, or are other (birthday, etc.) cakes also inseparably linked?

  • DKWalser||

    Also, whether custom wedding cake is a highly expressive activity is a matter of opinion, not fact.

    It is a matter of opinion whether or not the law should recognize the expressive nature of the creation of a custom wedding cake. Whether a particular cake successfully conveyed its intended message is NOT a matter of opinion. It either did or it did not.

    In the case of one of my wife's cakes, the one I briefly mentioned above, it clearly conveyed the message she had intended. On the day of the wedding, as my wife was assembling the cake before the reception, the bride arrived and came to observe. After a few moments, one of the details caught her eye and she shrieked: "Are those wheels?" My wife said that they were, and the bride started laughing as she went in search of her new husband. To a casual observer, the wheels just looked like a border of circles along the bottom edge of the cake. The bride and groom both loved that hidden in plain sight was this homage to their passion for motorcycling. Message sent and received.

    No matter how the Court determines wedding cakes should be treated under the law, my wife's making of that cake was definitely an expressive activity.

  • Bored Lawyer||

    "The problem with your position is that a traditional wedding cake is immediately and almost universally recognized for what it is -- an expression of approbation for the couple's marriage. That is, a wedding cake doesn't need writing or symbols on it to communicate. The cake, itself, is the symbol. It is a symbolic expression of the couple's hopes and dreams for their wedded life together. The baker designs and creates that symbol for them"

    Thank you, this is the point I have been making in every post. Wedding cakes have a unique symbolism in our culture that other things usually do not.

    When you see a tuxedo, you don't necessarily think a wedding. People wear tuxedos to all kinds of fancy events.

    A wedding cake, OTOH, is generally understood to be a part of the celebration of a wedding. You see one, and think, someone is celebrating a wedding.

  • Josh R||

    Is it just a wedding cake that is inherently expressive? What about a birthday cake, an anniversary cake, a baby shower cake, a graduation cake, a Bar Mitzvah cake, ...?

  • DKWalser||

    Josh -- Birthday cakes, anniversary cakes, graduation cakes, etc., come in all shapes and sizes. It's hard to know what they are for absent some sort of writing on the cake. So, no, I don't believe that they are, in and of themselves, per se expressive of any particular message.

  • Josh R||

    Birthday cakes, anniversary cakes, graduation cakes, etc., come in all shapes and sizes. It's hard to know what they are for absent some sort of writing on the cake. So, no, I don't believe that they are, in and of themselves, per se expressive of any particular message.

    That's an interesting twist because most of the arguments I've seen supporting the baker emphasize that customization is a key element to his expression. Yet, it appears that you are arguing that customization of other cakes (all shapes and sizes) doesn't make a difference and perhaps that standard wedding cakes are expressive.

  • DKWalser||

    That's an interesting twist because most of the arguments I've seen supporting the baker emphasize that customization is a key element to his expression. Yet, it appears that you are arguing that customization of other cakes (all shapes and sizes) doesn't make a difference and perhaps that standard wedding cakes are expressive.

    Well, I'm not making that argument. My argument combines the creative nature of the customization and the symbolic nature of the cake itself. In other contexts, the courts have extended 1st amendment protection to creative activities that few would argue convey any kind of identifiable message. At least, if you were to poll the 'consumers' of the work few would agree as to its 'meaning' and fewer, still, would agree with the work's creator as to its meaning. So, I think its clear that a creative activity doesn't need to convey a message in order for it to receive 1st amendment protection.

    Yet, Volokh and others say that the making of a custom wedding cake is not protected because its not speech -- it doesn't convey a message. The discussion about the symbolic power of a wedding cake rebuts Volokh's argument.

  • DKWalser||

    ...I think its clear that a creative activity doesn't need to convey a message in order for it to receive 1st amendment protection.

    If a creative activity doesn't need to convey a message in order to to receive 1st amendment protection (think of much of abstract art), why is there such a disagreement about the making of a custom wedding cake? I believe there are two reasons. First, there is an understandable ignorance of the amount of creative effort involved. The general view is the customer simply picks out a cake from the baker's catalog of designs and, with a few minor changes in details, gets their cake. That's generally not the way it works. The catalog is a starting point. Each cake ends up being unique for the couple.

  • DKWalser||

    (Continued from above)

    The second reason is related to the first. I believe there is a certain amount of historical intellectual snobbery involved. The creative arts granted 1st amendment protection are generally the 'fine arts' -- the ones jurists were likely to have personal experience with as undergraduates. But the creative output of mere artisans, as opposed to artists, are much less likely to receive protection. Why? Because jurists are far less likely to appreciate the creative nature of work of artisans.

    They've studied the great painters and sculptors and intuitively appreciate why their output should not be compelled. These artists invest a bit of their soul into each of their works. It would be fundamentally wrong to force them to create something against their will. But, bakers? They're just doing a job. Everyone has aspects of their jobs they don't like. Bakers should just buckle down and do their job.

    That appears to be the 'logic' for why the creative efforts of making a custom wedding cake are unworthy of 1st amendment protection.

  • Bored Lawyer||

    "Is it just a wedding cake that is inherently expressive? What about a birthday cake, an anniversary cake, a baby shower cake, a graduation cake, a Bar Mitzvah cake, ...?"

    I think everyone agrees that a written message is expressive. If a cake says "Congratulations to Adam and Eve On Their Wedding" that is an expression protected by the First Amendment.

    The issue is whether a cake itself is expressive. For that, yes, wedding cakes are unique. Google 'wedding cakes' and click on images. You will see hundreds of images that look the same. And in our culture, they all symbolize a wedding.

    (Similarly, a woman wearing a white dress and a veil is instantly recognized as a bride. Other color dresses are not.)

  • Purple Martin||

    Google 'Birthday Cake'... Same result.

    Wedding Dress...your point is it has the same expressive quality as a wedding cake, correct? Google "Black Wedding Dress" (yes, it's a thing). Could a dress designer decline to make make a white wedding dress for a lesbian because it's a universally recognized symbol, but not a black wedding dress for the same wedding because it isn't?

    Wedding cake. Could the baker decline to make a plain rectangular sheet cake if informed it was for a gay wedding? How about a round cake? A round two-tiered cake if told it was for a birthday? The same cake if told it was for a gay wedding?

    Should a judge have to make these decisions in each individual case?

    You see where I'm going here. For this and other reasons, I think EV's argument is convincing.

  • loki13||

    "The issue is whether a cake itself is expressive. For that, yes, wedding cakes are unique. Google 'wedding cakes' and click on images. You will see hundreds of images that look the same."

    Wedding cakes are unique, man, they all look the same!

    I kid, mostly. But that becomes part of the problem. "[I]t is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one's friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment."

    Is cooking, generally, an FA activity? Why not? Why isn't cooking a birthday cake protected? And if you aren't protecting that expressive activity (ahem), then why protect wedding cakes? Well, I think I know why .... but from a legal standpoint?

  • Eidde||

    Professr Volokh,

    What about religious freedom? Was Smith correctly decided, and if not, and it's overruled, should the bakers be protected as part of the free exercise of religion?

  • Eugene Volokh||

    Eidde: I think Smith was correctly decided, though I also think state-by-state RFRAs are a good idea (Colorado doesn't have one, though); see http://www.law.ucla.edu/volokh/relfree.pdf for a pretty detailed analysis of that.

  • Eidde||

    That looks fairly interesting...of course I'll try to read it...will you be doing a post on religious freedom?

  • TwelveInchPianist||

    "Was Smith correctly decided..."

    Only if you believe that people being forced to violate the tenets of their religion care whether they are being forced to do so out of animus, or merely indifference.

  • NToJ||

    I suspect that people being forced to violate the tenets of their religion care more when it's animus, for the reason that it reflects society actively trying to harm them as opposed to a confrontation between religious tenets and functioning civil society. But assuming they care equally about it regardless, what difference should that make to me? I can believe that religious people care deeply about violating the tenets of their religion, but still think the law is a good idea, right? Do you think differently?

  • TwelveInchPianist||

    "I can believe that religious people care deeply about violating the tenets of their religion, but still think the law is a good idea, right? Do you think differently?"

    Sure. Especially if you don't care about people's ability to practice their religion. Or certain people's ability to practice their religion. But the point of protecting religious freedom is to ensure that people can practice their religion, not to ensure that Congress isn't thinking bad thoughts when it stifles their religious practice.

    A Jewish person is equally unable to wear a Yarmulke whether Congress passes a Yarmulke ban because it hates Jews, or as part of a generally applicable ban on head-covering.

  • NToJ||

    I think "ensure" is too strong a word here. If my focus is on policing intentional religious discrimination (as opposed to run-of-the-mill laws that happen to interfere with the practice of religion), animus matters. I also understand the point you're making; animus and non-animus interference equally imposes burdens on the religious person. I'm not sure why it matters, though. The purpose of the government prohibition on religious discrimination is not to save their feelings; it's to prevent governments from discriminating against religious practices.

  • Sarcastr0||

    The feelings of people burdened by a law is not relevant to the constitutionality of that law.

    Animus is about rational pretext for an irrational basis by the lawmaker.

  • Bob from Ohio||

    But their rights are relevant.

    Freedom of religion is just as much a right as to be free of discrimination.

  • Sarcastr0||

    I thought the Bill of Rights (not counting the 9th and 14th) was about negative rights that the government could not do, not positive rights.

  • ||

    And the Seventh. And the Fifth (Gideon).

  • TwelveInchPianist||

    "If you assume that the baker's wedding cakes are speech."

    Isn't that what makes a cake a wedding cake, that it's being used to celebrate a wedding?

  • Eugene Volokh||

    Many things are used to celebrate many important events. It doesn't follow that they are necessarily speech.

  • TwelveInchPianist||

    No, but they are expressive activity. Colorado certainly couldn't ban baking a cake for a same sex wedding.

    The reason that Colorado punished Masterpiece cakeshop was because they refused to take part in expression celebrating a same-sex wedding, because such expression is closely correlated with being gay. If you can refuse to bake a cake for most other purposes, but not because you object to the content of the message, that's a content based restriction and not allowed

  • TwelveInchPianist||

    I wonder if Colorado would punish somebody for refusing to sell a cake to, say, somebody celebrating their decision to begin gay conversion therapy.

  • Sarcastr0||

    No need to speculate yourself into imputing counterfactual double standards.

  • Josh R||

    TwelveInchPianist:

    The reason that Colorado punished Masterpiece cakeshop was because they refused to take part in expression celebrating a same-sex wedding

    The italicized portion of your statement begs the question.

  • gormadoc||

    The obvious reading of that is that the expression is the wedding celebration itself, and that by being forced to bake a cake for the wedding they had an unwilling part in that expression.

  • David Abrams||

    Hi, I am the attorney who filed the case against the National Lawyers Guild. I think that another poster up-thread made a pretty good analogy. Suppose a baker refused to sell a birthday cake to a gay person simply because the buyer was gay; it was nothing to do with the decoration on the cake. Most people would agree that it is reasonable to sanction this type of discrimination.

  • MightyMouse||

    They should just annex the West Bank already, instead of this death by a thousand cuts.

  • Eugene Volokh||

    MightyMouse: But what would Israel then do with the West Bank -- and its nearly 3 million residents, overwhelmingly Palestinians -- once it's annexed?

  • MightyMouse||

    Thats a good question...(long sigh)...

  • David Nieporent||

    Deport them to western Texas, or West Virginia. /Kirkland.

  • FlameCCT||

    I believe they would prefer California.

  • Rev. Arthur L. Kirkland||

    I would not necessarily object to offering American citizenship to everyone in the West Bank, although I have not examined the point. I believe we should consider offering U.S. citizenship to every Israeli citizen, in large part because I consider Israel's current trajectory and situation unsustainable, even without regard to the enormous and varied costs to the United States of attempting to defend an increasingly tough-to-defend Israel.

    I would object to deportation of anyone in this context.

    I would be willing to discuss this with you after you learn the difference between deportation and an offer of citizenship. Please keep me posted on your educational progress if you choose to try to depart your right-wing cocoon.

  • Ken Arromdee||

    The reason why your belief is compared to deportation is that both you and we know very well that the Israelis wouldn't leave Israel voluntarily. In order for your plan to make any sense, it would have to include deportation.

  • ||

    Send them to Jordan, where they were supposed to be in the first place.

  • Bob from Ohio||

    Their ancestors came from Arabia as invaders, send them back there.

    We sent the Studenten and East Prussia Germans back to their homelands, didn't hurt them.

  • apedad||

    So--with your logic--I guess we have to send back TrueAmericanParrot to whatever western European land his ancestors came from.

  • ||

    My family is from Eastern Europe, not Western.

  • Josh R||

    I'm not persuaded that Eugene's application of Dale to this case is correct.

    In Dale, the Court said, "The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." I'm not following how refusing advertisements from Israeli organizations amounts to the forced inclusion of an unwanted person.

  • jdgalt1||

    Defendants' arguments, however, must be rejected, as this court cannot, at least on this record, take judicial notice of the controversial nature of settlements in the West Bank..... [A] court may take judicial notice of facts that are capable of "immediate and accurate determination by resort to easily accessible sources of indisputable accuracy." Whether denoting an address as being in Israel is controversial or noncontroversial does not fall into that category. Quite to the contrary, the issue of Israeli settlements in the West Bank is the very epitome of a topic that cannot be reduced to "indisputable accuracy."

    That's exactly because it's controversial, you moron of a judge!

  • Brett Bellmore||

    You'd reduce it to "indisputable accuracy" at the price of making it a tautology: Anybody disagrees, it's controversial, because somebody controverted it.

    The National Lawyer's Guild, Masterpiece Bakery, Elaine Photography, they should all prevail, because non-discrimination isn't a good excuse for coercion. Not morally, not constitutionally.

    Goldwater was right about the 1964 Civil Rights Act. It went too far in reaching private discrimination. The only thing owed is governmental non-discrimination.

  • ||

    I am okay with coercion in the provision of emergency medical services and certain other exceptions like gas stations. But the exceptions should be few and far between.

  • Rev. Arthur L. Kirkland||

    Brett Bellmore has finally achieved his dream of being to the right of the Man Of Many Names on an issue.

    Congratulations, Brett!

  • ReaderY||

    I think a difficulty here has been the extremely broad conception of commercial and public accommodation that courts have entertained. Courts long ago rejected the idea that the First Amendment exempted educational institutions from discrimination laws. And they recently held that even university religious groups formed by students rather than the university itself can be subjected to discrimination laws. This seems like a significant broadening of the concepts of public accommodation and commercial.

    I disagreed with these developments when they arose. But they seem to almost erase the line between commercial and non commercial.

  • Brett Bellmore||

    It's the trend of things: Deprive business of rights, because money. Then deprive individuals of rights, because you've proven it's ok in the case of business. We're still on a forced march towards the "All that's not forbidden is mandatory" dystopia that's the logical end point of modern anti-discrimination ideology.

  • Gasman||

    But the Guild e-mailed the Athenaeum to say that it would reject the ad because of the Guild's "resolution barring [Defendants] from accepting funds from Israeli organizations."

    This sentence states the problem (from the Guild's perspective) as well as the solution: public law requires that the add be run, but nothing requires them to accept the money.
    Was that ever simple to fix.

  • CrispyBacon||

    Professor, why not frame this as a matter of freedom of the press?

    The concept of "speech" is a decent catchall, but the emphasizing the freedom of the press puts a rather fine point on this.

  • FlameCCT||

    Why would this be freedom of the press? It is an ad placement that was open to the public in an event brochure.

  • CrispyBacon||

    Because freedom of the press concerns printed expression.

  • CrispyBacon||

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