Free speech for thee and for me

Calligraphers win the right to refuse wedding invitations

Today the Arizona Supreme Court concluded that calligraphers cannot be compelled to personally write custom wedding invitations for marriages to which they object. While there's a lot to be said about future application of precedents like this to anti-discrimination law, I was glad to see the court distinguish cases involving expansive claims to "free speech" rights for blanket refusals to provide floral arrangements and wedding venues. Indeed, under the Arizona opinion, most of the goods and services commonly provided for weddings would not be "speech" (or would at most involve conduct with an expressive component) and therefore would not be constitutionally immunized from anti-discrimination law.

Along with a million or so other Americans, I am in one of those marriages the calligraphers condemn. Free speech used effectively by gay-marriage advocates convinced large majorities of Americans to support the cause. Those supporters can criticize the calligraphers on theological, philosophical, and political grounds. And of course, they can readily (and, I assume, happily) take their business elsewhere. But those whose very calling is to put pen to paper should not be required--on pain of government-imposed fine, jail, or loss of their livelihoods--to speak in violation of their consciences.

(The Cato Institute, Eugene, and I filed an amicus brief supporting a narrow win for the calligraphers on free-speech grounds. We did not express a view on the state religious-freedom claim, which the calligraphers also successfully invoked.)

Comments

[Eddy]

"I was glad to see the court distinguish cases involving expansive claims to "free speech" rights for refusals to provide floral arrangements and wedding venues...."

If you don't mind, I'd like to give an excerpt from Prof. Volokh's article "“Symbolic Expression and the Original Meaning of the First Amendment" - giving some Founding-era examples of what the author considers protected symbolic speech (question for class discussion: If toasts, bonfires, mock-funerals and the like can be symbolic speech, why isn't catering a wedding symbolic speech?):

"A leading English holiday, Guy Fawkes’ Day (called Pope Day in the colonies), revolved around processions and burning effigies. In the first major protest against the Stamp Act, colonists placed on a “Liberty Tree” (in that case, a large elm) various effigies, including a “devil . . . peep[ing] out of a boot — a pun on the name of former British Prime Minister Lord Bute (pronounced Boot), who was widely if erroneously believed to be responsible for the Stamp Act”; “[t]he effigies were then paraded around town, beheaded, and burned.” John Jay, coauthor of The Federalist, Supreme Court Chief Justice, and negotiator of a much-opposed treaty with England, reportedly “wryly observed that he could have found his way across the country by the light of his burning effigies in which he was represented selling his country for British gold” — a continuation of the pre-Revolutionary pattern of burning the effigies of disliked colonial governors.

"English supporters of restoring the Stuarts would pass a wine glass over a water jug while drinking a toast to the health of the king, as a clandestine symbol that one is actually toasting the “King over the Water,” which is to say the Pretender, who lived in exile in France. Englishmen and Americans who sympathized with English radical and colonial hero John Wilkes not only toasted him, but toasted and celebrated him using a number associated with him: forty-five toasts — representing Issue 45 of Wilkes’ North Briton, which got him prosecuted for seditious libel and made him a star — were drunk at political dinners where forty-five diners ate forty-five pounds of beef; at other dinners, the meal was “eaten from plates marked ‘No. 45’”; the Liberty Tree in Boston had its branches “thinned out so as to number forty-five.” Literal speech (the words of the toasts) was freely mixed with symbolic expression.

"Likewise, 1790s Americans wore colored cockades in their hats to represent their Republican (red, white, and blue, referring to Republican sympathy for the French Revolution) or Federalist (black) allegiances. Some wore cockades made of cow dung to mock the other side’s cockades. Some conducted mock funerals for the other side’s cockades (see the picture on p. 1062 of the article). Others raised liberty poles, or burned “Liberty or Death” flags stripped from their adversaries’ liberty poles. Yet others planned an elaborate pantomime criticizing their Congressman, including the burning of a British flag, preceded by displays of the French and American flags crowned with liberty caps, the British flag flying upside down, and a gallows.

"Colonists conducted funeral processions for liberty to protest the Stamp Act. After the Revolution, Americans burned copies of the Sedition Act and other federal laws, as well as copies of opponents’ publications that they saw as libelous (echoing the English legal practice of having libels be burned by the hangman). It is understandable that a culture that so often used symbolic expression as part of politics would see the freedom of speech and press as covering symbolic expression to the same extent as verbal or printed expression."

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/29/president-elect-trump-calls-for-flag-burning-ban/

[darkknight9]

"Some wore cockades made of cow dung to mock the other side’s cockades."

And I'm out. I'm all for trying to help the cause but the moment we have to traffic in actual crap, count me out.

[Eddy]

Dung go away mad.

[Stephen Lathrop]

Thanks for that Eddy. I note that with these examples, EV cites the colonists' lived experiences as evidence of their intentions with regard to freedom for symbolic speech. He does a very good job of it, and I am fully persuaded.

But otherwise, when EV is talking about press freedom, he systematically contradicts the overwhelming evidence of the colonists' lived experiences using the institutional press to foment the revolution and construct the Constitution. Instead, he argues that there was no intention to protect an institutional press, but only to protect a right for everyone to access a physical printing press. Why the form of argument which proves so persuasive in the first instance is utterly excluded in the second instance is far from clear.

[Halykan]

I'm a bit baffled by that second part. If you want to talk about the colonists' lived experiences with the press, then - the majority of American pamphleteers in the runup to the revolution were not professional writers or journalists. Plenty of private citizens, plus a truly staggering number of organizations (both charitable and political) funded the printing of handbills and pamphlets to express their opinions on all manner of issues, and often managed to skirt colonial laws while doing so.

The American revolution received considerable support from the Enlightenment-era equivalent of blogging. It would be extremely perplexing to me to argue that the framers of the Constitution intended for "freedom of the press" to be read as safeguarding the rights of a few professionals, rather than safeguarding the speech interests of the people via technology.

[Stephen Lathrop]

Halykan:

1. Among whatever pamphleteers you suppose did not have institutional press connections, how many were not dependent on institutional presses for the printing of their pamphlets? How many arranged for printing and publication by means of mutual profit deals with institutional presses? How many would ever have circulated at all without the institutional presses?

Nor was pamphleteering, taken as a whole, at all comparable in influence to the influence earned bythe institutional press at the time. The Boston Gazette, on its own, exerted greater influence than all the various pamphlets combined. Modern historians call the Boston Gazette the most influential newspaper in American history. In comparison with that, way too much has been made of pamphleteering. Sure, the record leaves us plenty of pamphlets to study. Probably just one story, published in the Boston Gazette, outweighed them all in revolutionary influence. That was the Thomas Hutchinson letters leak put into the pages of the Gazette following a chain of events set in motion by Benjamin Franklin (who leaked the letters, but had not intended they be published).

2. If you are not yet convinced, please note that Thomas Paine was running an institutional press while he wrote Common Sense. And note also that Common Sense. became the phenomenon that it did because it was excerpted, and sometimes published in full, by newspapers throughout the colonies. Without the institutional press, you might never have heard of it. And assuredly, far fewer during the colonial era would have heard of it. Published as a pamphlet, Common Sense sold fewer than 100,000 copies—which still made it the best selling title ever, among approximately 2.5 million colonists—a genuine publishing phenomenon, but still with far less reach than it quickly obtained by means of newspaper publishing.

3. There was no Enlightenment-era equivalent of blogging. Because of that, your perplexity can be relieved. Today, because the internet has bestowed a vaguely press-like power on everyman, it is possible for us to imagine a distinction between the institutional press and something else. Not so, in the colonial era. With no exceptions I can think of (maybe there are a few to be found), there was only the institutional press. That functioned with varying degrees of emphasis as news media, job printer, stationer, book-, magazine-, and pamphlet-publisher, and sometimes all together. It also functioned in at least one instance (Boston Gazette again), as a revolutionary headquarters.

That is one of the best reasons you can be sure that the institutional press was what the 1A meant when it referred to press freedom. At the time, there was nothing else for it to mean. Other meanings came later, with added technologies. Those expanded the scope and initiative for press activity among non-professionals. They did not subtract from professionals any of the press protections which the 1A had afforded them.

Thus, the real crux of your misunderstanding is to be found in your last sentence, where your use of "rather," implies the founders made a choice to bestow press freedom exclusively, either on professionals or on others. They did not mean that, and nothing I have written implies that they did.

Unfortunately, we see now, among movement conservatives who dislike media institutions, a desire to revive that mistaken assumption, but turn it around 180 degrees, to conclude that nothing in the 1A is there with a particular eye to protecting institutional media. Founding era history leaves it absolutely certain that any such assertion is incorrect. You can show that by exactly the kind of historical analysis EV used accurately on behalf of symbolic speech above—basing the conclusions on the lived experiences of the founders.

[Absaroka]

In your perfect world, precisely how do I go about becoming a member of your special 'institutional press'? Apply to the Ministry of Censorship for a certificate? What are the criteria for approving or rejecting those certificates? Will it be like hospitals or taxi services, where the existing monopoly holders can black ball new competition? Will it be may-issue, where I have to convince the ministry I have 'substantial good cause' to have my say, or shall-issue, where I pay the $100 and get a press card good for 5 years?

How big a press do I need - does it have to fill a city block, or just a high end laser printer? How about if I only publish electronically? Are Vox, HuffPo, Instapundit, VC, and Clayton Cramer all institutional press, or are none of them?

[Stephen Lathrop]

I don't think you ask your questions in good faith, but I will venture an answer anyway.

The answer begins with, "Who cares?" The modern distinction between an institutional press and others is mostly about news gathering, continuity, and collaboration. Those factors used together deliver information-publishing benefits which individuals are mostly powerless to match. So institutions which provide those need to be legally defensible, and in some cases, especially so. That should concern exactly no one, except bad public actors trying to conceal information from the public.

Thus, there is no reason for anyone to oppose an institutional press, because it enables information to be published which even the complainers otherwise could not have. Put that together with the fact that anyone can collaborate with others, gather news, and publish regularly, and there is no reasonable ground for complaint on the basis of exclusion, inequality, or discrimination.

The formation of an institutional press is a power protected on behalf of everyone, and also for everyone. The fact that it is not quite the same power enjoyed by Joe Keyboard, acting alone, is irrelevant, and should not cause any concern. Joe Keyboard still has that power. He just has to exercise it by practicing collaboration, news gathering, and regular publication.

But there are plenty of unreasonable complaints. Those come mostly from fools who would know even less than they already do, if their internet fare had not been enriched by stealing most of the factual part from the remnant institutional press. Folks like that yammer constantly about the evils of the "mainstream media." They agitate on behalf of half-formed notions that press freedom must have something about it that limits its protection to access to the means of publishing. They suggest legal measures to hamper the larger institutional press institutions, such as limiting their coverage or opinions about politics, on the grounds that those are campaign contributions. Those are arguments against press freedom, not on behalf of it.

[Absaroka]

"The answer begins with, “Who cares?” "

Well, I'd think you should. Your lack of precision makes it hard to know what you are actually advocating (and it's hard to persuade people to adopt policies without knowing what they are adopting).

As near as I can tell, you think their ought to be some legal distinction between the unwashed masses and the 'institutional press'. That means that we will eventually be faced with a case where we have to decide whether Fred's action is legal, because he is a member of your 'institutional press', or illegal because he isn't. Fred reasonably wants to know ahead of time whether he is a member of that class or not, and how that affects the legality of his actions.

You are in the position of saying 'We should change the law to say $X', but refusing to say what $X is.

[Stephen Lathrop]

Nonsense, Absaroka, I was clear. I said it more than once. I will say it again. Fred, to be a member of the institutional press, needs to do the things the institutional press does. He needs to practice collaboration, news gathering, and regular publication.

Perhaps you suggest I have not been clear, because I did not say any of the outlandish stuff you wanted to attribute to me. I am unable to oblige.

[Absaroka]

"He needs to practice collaboration, news gathering, and regular publication."

Great! So to be clear, the VC is part of your institutional press? But, say, Clayton Cramer isn't, because his blog is a one man show?

And if my wife and I gather news of interest to us and publish 'The Absaroka Report' weekly, we're part of the institutional press?

(I'm not sure why having N=2 writers is so materially different than N=1. If Bob Woodward has a blog called 'Words from Woodward' and Carl Bernstein has one called 'Bernstein's Blather' I dunno why they would be treated differently than if they publish the same content as 'The Bob-n-Carl Report'. It seems kind of arbitrary.)

[Brett Bellmore]

Of course it's arbitrary. that way you can decide on whether somebody is part of the "institutional press" after you've seen what they publish.

[Stephen Lathrop]

It is not arbitrary. Collaboration enables access to stories otherwise unavailable to lone reporters. Seymour Hersh in his recent autobiography, Reporter discusses how much harder it became for him to access stories when, even with his reputation fully made, and his extensive list of sources well practiced, he was out of contact with any institutional press.

Sophisticated sources, with important stories to tell, simply do not want to tell them to a person without getting the staying power of an institution to back a story's publication. They know a single reporter, without institutional support, is more apt to cave under legal pressure. They know legal pressure is more likely to be applied against a lone reporter. They have no assurance that the lone reporter can make a connection with a publisher which has influence and audience sufficient to justify giving the story. Sources want to assess beforehand the quality of publishing exposure they can expect. None of that favors Joe Keyboard, or even Seymour Hersh, if he is working freelance.

If you want complain that you and your wife might not get over all those bars, yeah, you are probably right. But on the other hand, I.F. Stone, working alone, did get over them. But that was the exception to prove the rule (and the only such exception I can think of). And Stone did outstandingly well on news gathering and regular publication.

If you were not happy with minimal collaboration, and decent marks on news gathering and regular publication, the extent and effectiveness of collaboration might be an element for factual determination. I rank those latter two together as more important than collaboration alone. I'm fine with two journalists, or one, if it is I.F. Stone.

I agree that the VC is part of the institutional press. I am not familiar with Clayton Cramer, except for a bit of recollection that he writes about guns, somehow. I have probably commented on him and forgotten about it.

[Absaroka]

"I’m fine with two journalists, or one, if it is I.F. Stone."

Hmmmm... IANAL, but it seems a little problematic to enact that kind of standard into an enforceable law.

"Sophisticated sources, with important stories to tell, simply do not want to tell them to a person without getting the staying power of an institution to back a story’s publication..."

Wait a sec, here. Let's assume you're right. People might want to talk to Joe but not Alice for lots of reasons. Maybe Joe is better looking, is a more sympathetic listener, or they trust him to not do a hatchet job. Why, though, does that justify some kind of additional legal protections for Joe that are denied to Alice? How are we as a society better off discriminating in some unspecified way against Alice?

"I am not familiar with Clayton Cramer"

He was one of those rank amateurs who exposed the prize winning professional, Michael Bellesiles. Just goes to show the perils of citizen journalism, I suppose.

[Stephen Lathrop]

Absaroka, as I said, we do not discriminate against Alice. Alice is as welcome as Joe to collaborate, gather news, and publish regularly. Why is this so hard for you? The 2A decrees a right to keep and bear arms. We do not say that the 2A discriminates against Alice, who does not choose to exercise the right and purchase a gun. And no matter how long she chooses to go without a gun, the right is still Alice's to use, if she wants to. 1A protection for the institutional press works in exactly the same way, and not just for the institutions, but for the persons who are part of them.

[jph12]

"Hmmmm… IANAL, but it seems a little problematic to enact that kind of standard into an enforceable law."

Neither is Stephen Lathrop, but your instincts are much better than his.

[jph12]

"Seymour Hersh in his recent autobiography, Reporter discusses how much harder it became for him to access stories when, even with his reputation fully made, and his extensive list of sources well practiced, he was out of contact with any institutional press."

Symour Hersh must be one old dude if his experiences are relevant to the meaning of the First Amendment at the time of its adoption.

[jph12]

"Among whatever pamphleteers you suppose did not have institutional press connections, how many were not dependent on institutional presses for the printing of their pamphlets?"

Who cares? Under your version, only the owners and operators of the press, not the individual pamphleteers, would have been protected by the First Amendment. And even then only if they published newspapers rather than books. Good luck with that.

"If you are not yet convinced, please note that Thomas Paine was running an institutional press while he wrote Common Sense."

And yet he didn't publish it in the institutional press that he was running, making your claim more than a little disingenuous.

"That is one of the best reasons you can be sure that the institutional press was what the 1A meant when it referred to press freedom. At the time, there was nothing else for it to mean."

Sure there was. For example, pamphleteering and letters to newspapers, like Common Sense, Letters From a Farmer in Pennsylvania, the Federalist Papers, and the Anti-Federalist Papers. None of the various authors of those documents were acting as members of your version of the institutional press when they wrote their respective tracts.

"I will say it again. Fred, to be a member of the institutional press, needs to do the things the institutional press does. He needs to practice collaboration, news gathering, and regular publication."

You heard it from Stephen Lathrop. The federal government can totally ban books without any First Amendment problem because book publishers aren't members of the institutional press.

I still have no idea what specific protections you think the institutional press are entitled to that the rest of us lowly schlubs aren't.

[Stephen Lathrop]

jph12, if you want to tell stories about what I write, you must read what I write first. If I say the founding-era institutional press included book publishing, as I did above, where everyone can read it, then you just look foolish claiming I said otherwise.

Likewise on Thomas Paine. I said that Common Sense was widely published in colonial newspapers, which made my point accurately, with zero disingenuousness. Could it be that Paine did not put Common Sense in the periodical he published because he did not want to be identified as the author? Why, yes, yes it could! There could even have been other reasons, equally irrelevant to the point I had already proved.

The other views you attribute to me are all crap you made up, without any basis at all in anything I have written. But I do see what you are doing, and I have some advice about it: you cannot reason from your own ideological premises to discover the content of someone else's writing. As bizarre as it may sound to suggest anyone would be stupid enough to try that in public, it happens to be a widely practiced crotchet among lower ranks of movement conservatives. You present yourself as a leading contender in that race to the bottom.

[jph12]

"If I say the founding-era institutional press included book publishing, as I did above, where everyone can read it, then you just look foolish claiming I said otherwise."

Is this not a quote from you? “I will say it again. Fred, to be a member of the institutional press, needs to do the things the institutional press does. He needs to practice collaboration, news gathering, and regular publication.” Do book publishers do that? No, no they don't. It's not my fault you refuse to present a coherent picture of either the institutional press or what protections the First Amendment allegedly provides to them that it doesn't to the rest of us schmucks.

"Likewise on Thomas Paine. I said that Common Sense was widely published in colonial newspapers, which made my point accurately, with zero disingenuousness. Could it be that Paine did not put Common Sense in the periodical he published because he did not want to be identified as the author? Why, yes, yes it could! There could even have been other reasons, equally irrelevant to the point I had already proved."

You haven't proved any point. The fact is, Thomas Paine wrote and published Common Sense as an ordinary private citizen, not the member of your precious institutional press. That he also allowed it to be excerpted in newspapers is of no moment.

"The other views you attribute to me are all crap you made up, without any basis at all in anything I have written."

Wrong. The other views I attribute to you flow directly from your attempt to limit the protections of the First Amendment to members of the institutional press.

And again, I still have no idea what specific protections you think the institutional press are entitled to that the rest of us lowly schlubs aren’t.

[Stephen Lathrop]

Well, jph12, because you persist despite advice, I suggest specific protections for you. They are the same ones Lincoln advised for one of his critics, namely that, "Pen and ink should be withdrawn from him on the same humane principle by which we withdraw pistol and ball from would-be suicides."

Or maybe that was not Lincoln. I can't find it when I search. Somebody said it.

[jph12]

So still no answer as to what specific protections you think the institutional press are entitled to that the rest of us lowly schlubs aren’t?

Still no coherent explanation of what makes someone a member of the institutional press?

Still just making a bunch of assertions and hoping everyone will play along?

[Rossami]

You are baffled, Halykan, because he is incoherent and consistently wrong on his interpretation of "the press". He's been told he's wrong repeatedly by multiple people up to and including Prof Volokh himself. But apparently Mr Lathrop has nothing better to do with his time than to repeat the same wrong arguments.

[Stephen Lathrop]

Rossami, on subjects about what the law says, Prof Volokh himself sets a very high bar. I leave all such questions to him, and thank him for his many contributions to my amateur legal education.

On questions touching on academic history, into which Prof Volokh sometimes ventures, I got better training than he did. Neither of us is a professional historian, of course. So it really cannot be a contest on the basis of personal authority. I am content in this thread to note that Prof Volokh has been shown to have modeled a sound historical technique, and used it well. The trouble is, he has to discount that technique to zero to support his other argument, about press freedom and the printing press as a device. I thought that was worth mentioning.

By the way, why do you care? Do you have some prejudice about how an essentially historical debate should come out? Why would anyone?

[FlameCCT]

"devil . . . peep[ing] out of a boot"

Did it also have the caption: "Kilroy was here"?

[Stephen Lathrop]

Flame, fun fact: Kilroy was a riveting inspector at the Quncy, MA shipyard, during WW II. He chalked that on completed work, to show that the piece-work-paid riveters had been properly tallied for payment. So the ships built at Quincy went out all over the world with Kilroy's name chalked everywhere, making him look almost magically ubiquitous to crews and passengers. I'm guessing the little guy with the long nose came later.

[jst1]

"Along with a million or so other Americans, I am in one of those marriages the calligraphers condemn."

So failure to condone is to condemn.
Got it.

[Noscitur a sociis]

At least in this context, I'm not sure I see the distinction.

[Chris_Virginia]

So you didn't read the actual opinion and relevant case history I see...

Pretty clear they meant to condemn gay marriage

[Krayt]

Regarding artistry and the first amendment, if floral arrangements, for example, are not protected, would it be ok for government to outlaw certain designs?

Some designs, colors, flower kinds, symbolize different things. Could that be banned?

Be careful what you wish for in your rage-o'-the-moment.

[Oshtur]

In my state they probably would have to make it clear in any advertising put before the public that the public's civil rights will not be respected for these services. Every member of the public has a right to have a creed with the practice of marriage regardless of 'male nor female' and they will not have their creed respected by the business. As long as they aren't permitted to stealth discriminate the market will probable handle businesses that engage in civil rights discrimination.

Sweet Cakes by Melissa in Oregon closed their bakery storefront before the state had even reached a ruling, Masterpiece Cakeshop used to be a 2 location business with 19 employees, now its one with mostly family doing the work.

[jst1]

"In my state they probably would have to make it clear in any advertising put before the public that the public’s civil rights will not be respected for these services."

Compelled speech? I guess if we are disrespecting civil rights, the more the merrier.

[Oshtur]

Who's compelling anyone to speak? If they wanted to operate a private membership business where the 'right' people were found first, and then the invitation of sale was made just to the membership that would be 100% fine.

But making a public offer to people of all beliefs and telling some of the responding public "Oh. We didn't mean people with YOUR beliefs." That's religious discrimination by the business - they can't tolerate the public with other beliefs then they have no expectation of theirs being tolerated either.

[Eddy]

Numero uno, I'm not sure founding a "private membership business" gives a refuge from "public accmmodation laws." Is Costco a "private membership business?" I found a case where they had to defend a disability-rights claim (they won, but not because they were private).

Numero two-o, does offering a calligraphy business to the public necessarily imply that you'll make "Happy Birthday Mein Fuhrer" greeting cards for 4/20?

[Oshtur]

The SCOTUS has made clear in BSA and Hurley the one thing we know is appropriate in a private association membership is religious belief.

And your bringing up design restrictions that involve things not protected by civil rights is just obfuscation.

If they won’t do marriage caligraphy related to a civil rights class, yes they need to inform the public that they are not welcome regardless of civil rights.

[Eddy]

https://reason.com/2019/09/16/free-speech-for-thee-and-for-me/#comment-7933564

[Oshtur]

So they are going to voluntarily notify the public they religiously discriminate. That would fit the requirement.

[Eddy]

"The SCOTUS has made clear in BSA and Hurley the one thing we know is appropriate in a private association membership is religious belief."

Are you familiar with the NAACP right-to-privacy cases? (The cases which ruled that Jim Crow governments couldn't dox the members?) They didn't require the NAACP to be a religious organization.

[Oshtur]

I never said it was exclusive, just responding to an concern it might not be permitted. I’m sure other situations qualify but definitely associations based around religion do. You could have a private membership business that only allows Southern Baptists without the blink of a SCOTUS eye.

[David Nieporent]

To be clear, Oshtur isn't a lawyer and doesn't know what he's talking about.

[Oshtur]

And some here are and still don't know what they are talking about. Fortunately in my state there is a 'plain speech' standard and what the law says is what it means as the Supreme Court clearly delimitated in the Arlene's Flowers rulings.

But snark aside, you are saying the SCOTUS would say a private membership organization can't associate by religious principles?

[jst1]

Forcing a business to advertise all aspects of it's terms of doing business is compelled speech. It seems that the business owners refusal to deal is at odds with your assertion that there was a public offer to people of all beliefs.
In the absence of monopoly, businesses should be just as free to choose customers as customers are free to choose business providers.

[EscherEnigma]

It seems that the business owners refusal to deal is at odds with your assertion that there was a public offer to people of all beliefs.

Have you ever seen an advertisement on TV, radio, print or online, that says "come get your stuff at our place! Except gay folk, who should fork right off."

I mean, besides when Rick Perry tried to convince folks to move to Texas because it didn't let gays marry.

[jst1]

"Have you ever seen an advertisement on TV, radio, print or online, that says “come get your stuff at our place! Except gay folk, who should fork right off.”

No I have not. That is probably because it is not compelled.
Commerce clause jurisprudence is wrong.
Let's just trade freely.

[Oshtur]

No they are not marketing services to the public respecting civil rights, they will have to be clear about that to avoid the proscription against misleading and deceptive advertising.

Shoot even private clubs in my state are required to not market to the public and make clear exactly who is invited to the event. Shouldn’t be any different for services not available to the public.

[Oshtur]

No they are not marketing services to the public respecting civil rights, they will have to be clear about that to avoid the proscription against misleading and deceptive advertising.

Shoot even private clubs in my state are required to not market to the public and make clear exactly who is invited to the event. Shouldn’t be any different for services not available to the public.

[Eddy]

I just noticed this in the opinion:

"As part of their requested declaratory relief, Plaintiffs request an
order allowing them to post a proposed statement (the “Statement”) on Brush & Nib’s website announcing their intention to refuse requests to create custom artwork for same-sex weddings. The Statement explains that Brush & Nib will not “create any artwork that violates our vision as defined by our religious and artistic beliefs and identity.” It lists several examples of objectionable artwork, including artwork promoting businesses that “exploit women or sexually objectify the female body,” exploits the environment, or “any custom artwork that demeans others, endorses racism, incites violence, contradicts our Christian faith, or promotes any marriage except marriage between one man and one woman,” such as “wedding invitations[] for same-sex wedding ceremonies.”"

Now, would they have the right to post such a statement and act on it, or on the contrary would they be obliged to make racist, violence-advocating, etc. material, because after all they're open to the public?

[Oshtur]

Sorry, you are saying that requiring advertising standards is 'compelled speech'? Are you advocating that a business should be able to put advertising before that public that contains 'untrue, deceptive or misleading' information? That disallowing that would be 'compelled speech'?

But rest well, its not compelled speech they just are committing a crime if it is geared towards the public when it actually isn't available to the public regardless of civil rights. They get cited, they aren't forced to say anything.

[EscherEnigma]

A posted sign that the business does not comply with section X of law Y is no more "compelled speech" then a posted sign on your most recent health inspection rating.

[Rossami]

Well, yes, Escher, they are both compelled speech. The health inspection rating is arguable defensible because, absent such posting, diners would have no way to know about a poor rating until after consuming the product. That is not the case where business compliance with section X would be uncovered regardless of posting during the contracting process.

[EscherEnigma]

That is not the case where business compliance with section X would be uncovered regardless of posting during the contracting process.

Nope. Most people would go in and out and never learn of it, because most folk aren't gay.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Note that when a business goes out of business, it is the owners and investors who lose the most; especially in a case like this, where lack of business was not the culprit, the close of those two locations meant a drop in supply, almost certainly filled by other businesses ramping up production and hiring all 19 of those employees.

So don't pretend the hurt here is those 19 employees. yes, their lives were disrupted. They may not have gotten jobs as good as what they had. But 19 employees is not the measure of the harm done by these lunatic short-sighted rulings.

[jubulent]

Free speech used effectively by gay-marriage advocates convinced large majorities of Americans to support the cause

And it turns out this was unnecessary. All you really had to convince were five quite progressive individuals who were mostly politically aligned with you anyway.

But those whose very calling is to put pen to paper should not be required–on pain of government-imposed fine, jail, or loss of their livelihoods–to speak in violation of their consciences.

It’s only a matter of time. The Supreme Legislature will have its way with the issue. Soon we will learn that not only is such “anti-gay” discrimination not protected speech, but it is in fact unconstitutional, thereby mandating state enforcement.

[RestoreWesternHegemony]

Yeah, I'm really curious as to what the polls would be like on this issue, and many others, if the media, corporate America, intelligentsia, and academy weren't cheerleading so hard for the leftist side.

[apedad]

You forgot:

Environmentalists
Feminists
SSM
Pro-choice
Unions
Teachers
Hollywood
etc.

You know...most of Americans.

How does it feel to be on the losing side?

[RestoreWesternHegemony]

What do the numbers look like if you only include taxpayers?

[DavidTaylor]

Is paying taxes now the criterion for political agency?

[QuantumBoxCat]

You do realize that it would only take a single purchase of almost any item at a convenience store to be a "taxpayer," right? Given how many regular-day goods are taxed, I would think it would be harder to find a non-taxpayer than it would be to find a taxpayer.

You may want to tighten-up your definition when you're trying to restrict the size of the group to the you and the antebellum elite.

[RestoreWesternHegemony]

You know far well what I mean when I say that. I am referring to paying meaningful federal and state income taxes. Not paying sales tax on "medical" weed or on bags of Cheetos.

[jubulent]

I don't have a problem with people advocating for a position they believe in, although I think media companies especially should be more honest with their audiences.

[EscherEnigma]

I hear this nonsense a lot, but I've never gotten a good explanation for why folks that we convinced shouldn't then convince others in-turn.

Fact is, "the media, corporate America, intelligentsia, and academy [...]" weren't always on the side of gay-rights. They changed their mind on this and came over to the side of gay-rights after years and years of persuasion, mostly by gay folk in those fields that risked their careers and livelihoods by coming out.

So having done the hard work of persuading people, why shouldn't folks so-persuaded then turn around and persuade others?

Think about it, on any other issue, this question would be ridiculous. Pro-life/pro-choice? You want folks you convince to your side to continue to convince others. Drug-law reform? You want folks you convince to your side to continue to convince others. Immigration reform (either to be more open/accepting or more closed/rejecting)? You want folks you convince to your side to continue to convince others.

But then when it comes to gay rights, this suddenly becomes an error?

Ridiculous.

[RestoreWesternHegemony]

I really don't understand what you're trying to say here. Is your position that the media and academy should be pushing its views on the people, regardless of issue?

[EscherEnigma]

I'm saying this this refrain:

I’m really curious as to what the polls would be like on this issue, and many others, if the media, corporate America, intelligentsia, and academy weren’t cheerleading so hard for the leftist side.

Is ridiculous.

[RestoreWesternHegemony]

It's not ridiculous at all. People will answer untruthfully if they think the "elite" are against them.

[Bob from Ohio]

"five quite progressive individuals"

One. The other 4 didn't need convincing.

[cicada]

After all these years free speech is still a dream dying slowly :/

[Brett Bellmore]

Killed one high minded law after another.

[FlameCCT]

Lost in all of these cases is the discrimination by the SSM advocates. They specifically chose businesses with religious owners when there were plenty of alternatives available for the services being requested. Truly sad but typical of Progressives who prefer using the force of Big Government to destroy anyone who disagrees with their ideology.

[EscherEnigma]

Nope.

This is one of the ADF's speculative lawsuits where they found a local chump to sue the city to preemptively overturn the non-discrimination law.

That is to say... no one has actually sued, threatened to sue, or complained about these calligraphers. They are the plaintiffs, not the defendants.

[Eddy]

So they didn't wait to be bankrupted by a complaint, but proactively reached out to the government, and when they couldn't be assured their legal rights would be protected, they sued?

That's how abortion clinics litigate - they don't wait to be prosecuted for doing an illegal abortion, they sue so that the abortion laws will be declared unconstitutional.

[EscherEnigma]

You do realize I was directly refuting FlameCCT's claim that "[SSM advocates] specifically chose businesses with religious owners [...]", right?

I wasn't saying it was an invalid move. I'm saying FlameCCT's narrative is bullshit.

[Eddy]

Ah, sorry about that, your point was a narrow one and I should have acknowledged that.

[EscherEnigma]

Today the Arizona Supreme Court concluded that calligraphers cannot be compelled to personally write custom wedding invitations for marriages to which they object.

Nope. Re-read paragraphs 2 and 3 of the ruling. This is only for these specific calligraphers, and only for refusing same-sex wedding invites.

They very specifically did not rule that they could refuse any and all, and Brush and Nib continues to be bound by the other provisions of local, state and federal law prohibiting them from refusing customers on other grounds.

So no. This was a narrow, cowardly ruling.

[Josh R]

Nor did the court hold that Brush and Nib, or other calligraphers, couldn't refuse to serve other marriages they object to. In my opinion, the logic of the ruling supports Dale's claim even though the holding does not.

[EscherEnigma]

Even if you want to argue that†, that still means that Carpenter's claim isn't true, as the Arizona Supreme Court did not make the broad conclusion he has attributed to them.

This was a very narrow ruling. Trying to stretch it to be a broad one is not honest.
________
†And we have decades of precedent saying that the same argument applied to race would not win.

[Josh R]

What precedent are you referring to?

[Armchair Lawyer]

I am distressed by this tendency in court cases by the gay community.

I believe in tolerance and acceptance in America. And that people can have different beliefs, and those beliefs can be respected, even if they aren't shared. And that we don't need to impose our beliefs on others. I for the record, I supported gay marriage.

To illustrate the point, the other day I was in a Mennonite deli. There was a sign requesting that people be dressed modestly when in the store (IE, no shorts). And I respected that belief, even if I don't share it. And if they came to my shop, I might be wearing shorts, and that would be fine.

I am distressed, because it seems to be a tendency within certain members of the gay community to deliberately seek out establishments owned by religious owners (typically Christian) who don't necessarily believe in gay marriage. And deliberately provoke the owners by demanding they do something which violate their beliefs. And if the owners choose not to, attempting to shut down the business through legal means or lawsuits. This...is not tolerant. This is seeking to impose one's beliefs on others, or else have them suffer severe consequences. And, it is frankly speaking, wrong.

This country, in many ways, was founded on a diversity of beliefs, and the ability to tolerate a diversity of beliefs. It is where a Mosque and Temple can exist on the same street, where someone in a hajib can pass someone waving a rainbow colored flag on the street, and there will not be a fight. But when one group attempts to use the legal system to deliberately target and suppress a different group into their opinions....maybe we should reconsider what's going on.

[RestoreWesternHegemony]

I don't disagree, but if you weren't distressed 20 years ago, you weren't paying attention. We all knew this was the end game of the gaystapo.

[not guilty]

I haven´t read the opinion, but how is preventing discrimination based on sexual orientation not a compelling governmental interest that cannot be achieved by less restrictive means?

[I Callahan]

Because the whole "freedom of religion" thing in the first amendment takes precedence.

[Oshtur]

Actually this is more a 'freedom of the press' thing. As far as freedom of religion if they invited the public - people of all religions - the court would have to consider the religious freedom of their invited customers too and every customer has a right to a creed that has same-séx marriage as a practice.

If was ever in that situation would be on my order:

Business: our beliefs don't include same-séx marriage
Me: "Mine do" and continue with my order.
Business: we aren't going to serve you.
Me "If you weren't going to sell to those of my creed why did you invite me to come buy in the first place?"

At the very least if there was no warning they discriminated by creed it would be false advertising. And if they did say they weren't respecting the religious freedom of those they invite that might be a different constitutional issue. In US v Lee the owner wasn't allowed to treat people as if they shared his beliefs.

[ReaderY]

I think that, in general, these cases involve a relatively small number of boundary professions in which there is a dispute as to whether what they do is speech or not.

For this reason, I don’t think these cases are actually very important, despite the attention and hype they get. There will always be situations close to the line and calls made as to which side it falls on. Exactly how much gray is needed to distinguish “night” from “day” and where exactly the boundary is drawn may be important to the people in twilight who disagree as to which side they’re on. But it probably isn’t really important overall. Most of the time, it’s clear whether it’s night or day.

[santamonica811]

That was my take-away as well. I think that for 99% of businesses, there is no doubt that they do (or do not) engage in expressive conduct in a way that might lead to these types of disputes.

Sorting out these 'gray area' cases seems a perfectly appropriate use of the court system(s).

[Eddy]

We just have to keep these basic three principles in mind:

-A wedding ceremony is an example of First Amendment expression and thus cannot be punished.

-Assisting at a wedding ceremony is an example of First Amendment expression and thus cannot be punished.

-A wedding ceremony is a simple business transaction having nothing to do with the First Amendment, therefore it is permissible to force people to participate in it.

[Ilya Shlyakhter]

Why can't the calligraphers subcontract the creative work to someone willing to do it? They themselves would only be handling subcontracting logistics, which isn't speech. The clients would get the service.