SCOTUS Grants Cert in 303 Creative On Free Speech Question

The Court did not accept the question presented on the Free Exercise Clause.

The Supreme Court has granted cert in 303 Creative v. Elenis. That petition presented two questions:

1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist's sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.

2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.

Once again, the Court narrowed the QP:

The petition for a writ of certiorari is granted limited to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.

The Court will punt the Smith question for another day.

303 Creative was first distributed on January 7, so this case did not linger for long.

Comments

[TwelveInchPianist]

Seems like a better vehicle than wedding cakes.

[LawTalkingGuy]

I don’t see why sincerely held religious beliefs should matter here at all. An artist who must engage in expression they otherwise wouldn’t so they won’t not run afoul of nondiscrimination law should have a fairly straightforward compelled speech claim. Doesn’t really matter if the belief is religious or sincere. The real question is whether someone is engaging in some kind of expressive conduct. I’d say web developers probably are. But there might be some limits to that too. Probably depends on what exactly the objection is. Like you probably don’t have to do the same sex marriage website but idk if you can do a blanket denial of service such that you would refuse to develop the website for a gay person’s estate planning law firm.

[LawTalkingGuy]

So that is to say SCOTUS didn’t “punt” as much as they granted cert on the appropriate question for review.

[Bored Lawyer]

You are alluding to a fact that seems to have escaped many.
In virtually every case where this has come up, the objecting person did not object to serving gay people, but objected to creating something that contained a message that they disagreed with, i.e., affirming same-sex marriage. The guy who would not bake a wedding cake for a SSM would have baked a birthday cake for the same people. The same, I believe, is the case for the web designer in this case — she would design a web site if a gay person wanted to set up a website to promote their law firm or any other business.
That to me takes it out of discrimination and into the First Amendment realm.

[LawTalkingGuy]

Yes I’m a bit heterodox compared to most liberals on this. I think they’re a lot of true compelled speech claims in this area, and that permitting them doesn’t actually threaten to unravel all of public accommodations/non-discrimination law.

[Bored Lawyer]

Good for you. But, really, it’s a bit dishonest. Take racial discrimination. There is a world of difference between someone who says, “I won’t serve blacks,” and “I’ll make blacks almost anything they want, but I won’t make a sign supporting BLM.” Someone who says they are the same is either stupid or dishonest.

[LawTalkingGuy]

It should about the particular message itself rather than the class of people involved. And I don’t think a lot people on the left get that (ie Mark Joseph Stern). But I do agree with them that a free exercise exception is just going to swallow non-discrimination law. “My religion says black people have the curse of Cain/Ham so I don’t have to serve them or employ them” is basically a get out of Title II/VII free card.

[Bored Lawyer]

Not really, if Smith remains the law. And even if it overturned, not clear to me that such would not be a compelling interest.

[LawTalkingGuy]

Well if smith remains the law sure. I’m not so sure they’re going to survive strict scrutiny if that becomes the test, however. I could see some tailoring issues. They might say broad non-discrimination law isn’t narrowly tailored because other opportunities exist in the world. Maybe the odd case of a gas station in the middle of nowhere could still be liable under strict scrutiny. But not sure about things like employment or businesses with a lot of competition.

[Josh R]

I agree with you refusing to make a BLM sign is not discrimination (and if it were, it would be protected by the First Amendment).

How about a limo driver who has no problem serving gays, but won’t serve gay weddings because he disapproves of their message. Is that discrimination? If so, is it protected by the First Amendment?

[Bored Lawyer]

It’s not discimination. Whether it’s protected by the First Amendment is a harder question, as I don’t necessarily see that as expressive the way designing a website, creating photographs or baking a custom cake is.

[LawTalkingGuy]

In the limo example, would it matter if the limo driver business is mostly wedding related? So that he says he has no problem giving rides to gay people but ultimately it doesn’t matter if he says that because functionally he never will?

[Josh R]

Assume his business is not mostly wedding related.

[LawTalkingGuy]

That’s tough. I actually don’t have an answer and I could see both being correct.

[Sarcastr0]

It’s not an expressive service, but I still think compelled service is pretty bad policy.
Compelled providing mass-produced or resaled goods is an easier case, seems to me.

[LawTalkingGuy]

“I still think compelled service is pretty bad policy.”

I don’t think so. Service incorporates a lot of things: restaurants, stores, hotels, mechanics, gas stations, healthcare, legal services, accounting services, IT, construction, real estate, HVAC, repair services, package delivery, etc. It’s only bad policy in a world where people actually behave rationally in a market economy where there is lots of competition. As we know from the history of the South people don’t behave economically rationally in this context and people are excluded from society based on immutable characteristics.

[Bored Lawyer]

“As we know from the history of the South people don’t behave economically rationally in this context and people are excluded from society based on immutable characteristics.”

The South forced treating blacks as third class citizens by law, for an extended period of time. That is something that is indeed unconstitutional, and ended half a century ago. If someone tried that today, they would soon be bankrupt.

[LawTalkingGuy]

Right. But white southerners wanted it that way even though it is economically irrational. And we also don’t know how people would necessarily react to a green-light to discriminate again. I think most would realize it would be economic suicide, but not all. And whether these would be discriminators offer important services in underserved areas is totally unknown.

[Sarcastr0]

Yeah, got me there, LTG. I wasn’t thinking of like lunch counters, but of course that’s a service. I was thinking, like, personal service. Like photographers and the like.

But even cabs got a problem discriminating.

[Bored Lawyer]

“But white southerners wanted it that way even though it is economically irrational.”

Some did. Probably the majority. But a minority did not. The streetcar companies in Lousiana opposed the laws the Supreme Court upheld in Plessy v. Ferguson. The hypothetical, which we will never know, is what would have happened if Plessy went the other way. Many would still have discriminated, but many would not have. The latter would be more succesful economically, and the former would then have strong incentive to act differently. Nothing like cash to make one rethink ones principles.

If antidiscrimination laws were abolished today, I doubt it would have much impact, since (a) most people are far less bigoted and (b) competitors will rush in and fill the gap for those who are. Which will make the bigoted rethink their positions. See my above comment about principles and cash.

[Sarcastr0]

Bored, I’m not sure you understand how humans function in groups. Group solidarity can be a powerful force. Add in not wanting to get shunned…The number of defectors were negligent in enough big places to matter.

If antidiscrimination laws were abolished today, I doubt it would have much impact
Shelby v. Holder shows me otherwise. So does the number of people on this highly educated blog who buy into The Bell Curve at this late date. Or cite the Turner Diaries as prophetic.

We’re not clear of this shit yet. Took 200 years to get this dirty.

[Ridgeway]

You are pointing up another important factor.

If you said “I won’t make BLM signs for black patrons”, but you would for non-black patrons, that it discrimination on the basis of race.

If you say “I won’t make BLM signs for anyone,” that is discrimination based on content, not race.

Similarly, if I, a heterosexual, go to the Masterpiece Bakeshop and ask them to construct a cake for my gay friends’ wedding, and they refuse, they are discriminating based on content, not my sexual orientation.

[Sarcastr0]

I honestly think most legally cognizant liberals agree with you – so long as it takes creativity to undertake (i.e. not a premade item) it’s pretty hard to justify compelling.

Line drawing may vary, this includes just about every service like a
photographer, but not like cakes from a catalogue.

[Josh R]

Whether it is a case of discrimination is a matter of state statutory interpretation. If that threshold is met, and it is in this case, only then do we need to reach the First Amendment question.

[Bored Lawyer]

That’s technically true, but no honest person believes that that is discrimination or what was intended by state anti-discrimination laws. The attempt to stretch anti-discrimination laws to cover political or idelogical disagreements is a mendacious misapplicaiton of those laws.

[Josh R]

I think it’s discrimination because the conduct being objected to is inextricably linked to being gay. As the Court put it in Christian Legal Society

CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” […] Our decisions have declined to distinguish between status and conduct in this context. […] (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); […] (“A tax on wearing yarmulkes is a tax on Jews.”).

[Bored Lawyer]

I am aware of that body of law, and find it completely unconvincing. The yarmulka example is both out of context and inapplicable to what is being discussed in these cases.

Suppose a photographer refused to be hired to photograph a bris (Jewish circumcision ceremony) because he views that as barbaric and cruel to the baby. That’s not anti-Jewish discrimination, even though a bris is inextricably linked to Judasim.

In the yarmulka case, there is no rational reason for the government to tax those and not other headgear. So that is clearly an example of targeted anti-semitism. Not to mention that governments generally do not have expressive choices the way individuals do.

[Josh R]

While a bris is inextricably linked to being Jewish, circumcision is not. Thus, refusing to photograph all circumcisions is not discrimination on the basis of religion.

How about a person who serves Jews but won’t serve people wearing yarmulkes while serving people wearing other head coverings?

How about the law at issue in Lawrence? Discrimination against gays? Or if you prefer, a person who will serve gays, but not people who have sex with another person of the same sex?

[Josh R]

In Masterpiece Cakeshop, Gorsuch and Kagan wrote dueling concurrences exploring the Free Exercise issue, both assuming that Colorado hadn’t acted with open hostility towards the baker’s religious beliefs. Gorsuch claimed that even without such hostility, Colorado’s application of their anti-discrimination statute was not neutral towards religion because it sanctioned a baker for refusing to serve a gay wedding, but not a baker who refused to create a cake with religious messages that condemned same-sex marriage. That issue will likely remain unexplored in this case.

[Bored Lawyer]

“An artist who must engage in expression they otherwise wouldn’t so they won’t not run afoul of nondiscrimination law should have a fairly straightforward compelled speech claim.”

And yet one can expect that at least three of the SCOTUS justices will vote against the plaintiff here.

[LawTalkingGuy]

Yeah probably. That’s unfortunate though.

[Josh R]

I wouldn’t be so sure about Kagan and we don’t know what Breyer’s replacement will think. Don’t forget Hurley was decided unanimously in favor of the parade organizers.

[BillyG]

Typo in article first sentence. It’s 303, not 3030.

[Dilan Esper]

If you read the facts of the 10th Circuit opinion, this really looks like a set-up case, where the plaintiff carefully scripted its “rules” for services delivered to same sex couples in a way designed to draw SCOTUS review.

Nothing wrong with that, except they claim this is due to “sincere” beliefs. And I wonder about the sincerity of people whose religious beliefs read just like a carefully staked out litigation position.

[ReaderY]

I think the Supreme Court is right to frame this case as a pure free speech case. Religion doesn’t really have anything to do with it. For that reason, it simply doesn’t matter whether religion was a motivating factor or not.

[Sarcastr0]

The sincerity ship has sailed, right? It’s not a question presented, finder of fact is done.

There may be a case in the future on that, if the right continues to push on these exceptions, but this won’t be that case.

[KenveeB]

Why is that any more of a problem than a plaintiff who goes around to businesses specifically to find one that won’t serve them just so they can sue? I don’t see how it affects sincerity of beliefs just that they try to phrase things in the way they know the law is structured. That happens all the time.

[Bored Lawyer]

Since SCOTUS declined to take up the religious issue, but only the free speech issue, does it matter?

[HE Pennypacker]

I don’t see how it makes much of a difference. Didn’t the Covid-restriction cases gut Smith anyway? In any event, the eventual decision in the petitioner’s favor here will get ratcheted up to apply in free exercise cases so it won’t make any difference in the long run. They might as well have expanded the question presented to whether Chevron deference or nondelegation doctrine still exist; the writing is on the wall.

[Ed Grinberg]

Dilan Esper: “I wonder about the sincerity of people whose religious beliefs…”

I bet your preferred solution would be to eliminate the “sincere religious belief” exception to “discrimination” laws. Mine would be to leave people alone. Let them “discriminate”! (regardless of why that choose to do so)

[Dilan Esper]

My preferred solution would be to litigate sincerity in religion cases. (Obviously, as noted above, this is a free speech case as presented to SCOTUS.) Exemptions to general laws the rest of us have to follow are very serious business. If someone wants to claim one, I want us to be darned sure the person’s belief is sincere. I want to see longstanding, consistent practice with little or no deviation.

[David Nieporent]

As you know, unlike the validity of legal beliefs, the sincerity of legal beliefs can be litigated under current doctrine. But it’s a rather difficult thing to litigate. Sure, there are egregious situations where it’s obvious that the claimed religious belief is feigned. (The anti-vaccine people being obvious examples. Or the cat food guy.) But most of the time, you’re inquiring into whether someone actually holds a particular non-rational opinion. The mere fact that the person is inconsistent or imperfect does not mean he does not hold those views.

[ReaderY]

The result seems straightforwardly compelled by Hurley. Agree this is a free speech case, religion is not really relevant here.

Note that Masterpiece Cakeshop and Fulton are potentially different in this respect. In Masterpiece Cakeshop, the baker claimed that cake decorating is speech, and if the Supreme Court had pursued that angle the case could have been resolved without reaching the religion question. In Fulton, however, it’s pretty clear running a foster care agency isn’t speech.

Web site design, however, is clearly at least as much a form of speech as organizing a parade. For this reason, there’s a good likelihood the result of this case will be unanimous, as Hurley was.

[ReaderY]

From a free speech standpoint, there are a small number of expressive-ish occupations whose first amendment speech clause protection status is ambiguous and will have to be resolved. Is cake decorating speech? Is flower arranging? The world won’t really end if these and similar occupations get classified one way or the other for First Amendment purposes. And free speech protects wveryone, religiously motivated or not.

However, religion clause challenges potentially address a much wider set of laws, laws that cover behavior, not just speech (or arguable speech). The ability to get an out from more general ordinary laws is a much more powerful right than just the ability to get out of loss that specifically restrict speech.

For this reason, I don’t think this case is likely to have any bearing on the issues the court will need to face in addressing Religion Clause questions.

[Rev. Arthur L. Kirkland]

I encourage those who wish to protect religious claimants and claimants to support standards whose imposition (1) they are willing to live with and (2) they believe are likely to endure as American society becomes increasingly less religious and, most likely, less supportive of special privilege for religion-based claims and claimants.

[Bored Lawyer]

Simple standard: you can’t force anyone to provide you a good or service. And you also can’t force anyone to buy your good or service. If you decide to deny your goods or services to a class of people, you have to live with the consequences of lost sales, not only those you deny, but those offended by your denial.
See, simple. No mention of religion or religious rights.

[Nelson]

If a baker makes a cake saying, “You’re the greatest, Sally”, no honest person would believe the baker is supporting Sally being the greatest.

If a baker makes a cake for a same sex wedding, no honest person would believe they are supporting (or, for that matter, participating in) the wedding.

If a web designer makes a website that says “Steve’s Toyota World is the best Toyota dealer”, no honest person would think that the web designer supported Steve’s Toyota World.

If a web designer makes a website that says, “Congratulations Adam and Steve”, no honest person would think that the web designer supported the wedding of Adam and Steve.

The real problem is that religious zealots are not honest, nor reasonable, nor having their personal religious beliefs challenged. They just don’t like that gay people are required to be treated like any other customer.

This isn’t about aritistic expression or freedom of speech. It never has been. It is about people who won’t accept that America has, in an overwhelming way, rejected their bigotry and are trying to use the legal system to force others to follow the small-minded beliefs of their dwindling minority of Christians in America.

It is the same playbook that they use to try to force abortion to be outlawed in a country that dominantly supports choice. It’s the same playbook that was used in the failed campaigns against slavery, civil rights, interracial marriage, divorce, second marriages, women voting, school integration … and the list goes on.

Anti-gay bigotry, like slavery, Jim Crow, misogyny, and other disgusting moral positions throughout history, will eventually disappear from America except for the most ardent hate-mongers. It will be decades until it happens because the dead-enders never give up without a fight. But morality will win out eventually. Because, on balance, America is a country that ends up making the right decision.

With this Court, it will just take a little longer for decency and morality to prevail. It changes the timeline, not the end result.

[Nelson]

*failed campaigns against abolishing slavery

[ReaderY]

Are you referring to the anti-slavery bigotry that John Calhoun characterized as misguided religious zealotry, animosity-driven hate, and a disgusting moral position? That he said was obviously not the sort of thing the First Amendment protected? That Calhoun was absolutely certain would soon disappear from history? That attacked what the Supreme Court held in 1857 to be a fundamental constitutional right? That’s why Calhoun argued in 1833 that Congress should outlaw sending objectively evil anti-slavery propaganda through the mails.

It’s worth pondering why the bigots and the haters, the religious zealots, the people with the objectively disgusting moral position, ended up winning on this one.

After all, the amendment that ended up becoming the 13th wasn’t the objectively correct one, the Corwin Amendmnet, the one that protected people’s rightful peculiar institutions from bigotry and hate and animosity and disgusting religious zealotry and superstitious backwardness. It was the other amendment, the objectively wrong one, the evil one, the religious superstition-based one, the one based on nothing but animosity and hate and vitriol, that ended up getting ratified and becoming the 13th Amendment.

Is it possible that the First Amendment, and this country’s tradition of free speech, had something to do with that?

[ReaderY]

After all, it is you who are playing by John Calhoun’s playbook here. Your rhetoric about the positions you dissapprove of is virtually identical to his. If he was right, then surely that strengthens the evidence that you’re right to. But if by any chance there might be some doubt about that, perhaps he might have been wrong, then perhaps making exactly the identical argument that he did doesn’t necessarily result in as big a slam dunk win as it might appear.

[Nelson]

I am referring to any last-gasp effort to maintain a social and moral wrong that has lost the support of the populace. Religiously-based or not.

All of the things that I listed were/are morally wrong. All of them had a dedicated cohort of dead-enders fighting against the inevitable and creating chaos, misery, and often violence because of their unwillingness to accept that the world had moved on from their beliefs. And was a better place for it.

[Nelson]

If you want to be a bigot, knock yourself out. If you want your bigotry to allow you to play by a separate set of rules in the public square, you may not. You do not have the Constitutional right to special treatment under the law because you say that some way, some how, if you squint at it in the right light, this might brush lightly up against your “sincerely held beliefs”.

Because claiming that this is a free speech case stretches the boundaries of free speech to untenable extremes. Designing a website doesn’t impact your religious freedom. It doesn’t impact your ability to practice your religion in any way.

And if using someone else’s content to create a commercial product counts as your, personal speech, there is no limit to what “speech” is. It is a meaningless phrase with no boundaries.

[benji]

They aren’t making a claim as to religion, they’re saying the customer cannot compel speech.

[Mike Adamson]

Well said

[Bored Lawyer]

Your post is nonsense. Simple illustration: if a gay printer is asked by someone (say, the Westboro Baptist Church) to print up 100 signs that say, “God Hates Fags,” the idea that he would have no issue with that, and just view it as an opportunity to make a buck, is risible. People don’t want their talents and resources to be used to promote messages they find abhorrent. That you consider that dishonest says more about you than them.

As for what is popular, rights are not determined by that. Minority opinions, even those most view as despicable, are entitled to the same rights as opinions that are mainstream.

[Nelson]

The fact that he has an issue with it is irrelevant. He would not have a valid Constitutional reason to refuse. And, depending on how the law reads, he probably wouldn’t have a legal right either.

I feel like people these days fail to understand that the fact that someone said something mean or hurt your feelings or made you feel uncomfortable about your beliefs or want something that you don’t or believes differently than you do is not a legal or Constitutional issue.

Someone who says, “God hates fags” is a terrible person. They are not infringing on your rights. There is a HUGE difference.

[Bored Lawyer]

You are eliding the point. The question is, whether the merchant or printer should be forced to provide their services to promote a message they disagree with or find abhorrent.

If some law compelled the printer to do so, he would indeed have a strong compelled speech argument under the First Amendment.

And, your point was, no one thinks the printer is engaging in speech. But people do believe the printer is promoting such speech, for money. The notion that society views a printer being asked to print up signs that say “God Hates Fags” the same as a printer printing up signs that say “Eat At Joe’s Diner” does not comport with reality.

[Nelson]

Only a liar or a fool would claim that physically printing something is equivelent to personally promoting it. But that is the inherent dishonesty of the “religious freedom” folks. If it hurts your feelings or says something you don’t like, you believe the law shouldn’t apply to you. It’s the worst sort of snowflake bullshit. And as intellectually dishonest as claiming a fetus without a heart can have a heartbeat.

The question is simple: should a business with an owner who makes a tenuous claim to having his “sincerely held beliefs” violated be allowed to ignore the laws that govern every other similar business? You are entitled to your own beliefs, but in America laws should apply equally to zealots and non-zealots. If you claim that not getting special treatment is an unreasonable expectation, prove it. Don’t just whine that it makes your bigot muscle hurt.

It is about the preferential treatment these claims are trying to establish for Christians. It isn’t even required that there be an honest impact on the complaining Christian. If they say so, the law shouldnt apply. Right? Because they deserve special treatment to accomodate their hatreds and self-importance.

I believe in the rule of law. I believe in religious freedom. I believe that everyone, regardless of race, religion, or creed, should be treated the same under the law. It is, in my opinion. the most important thing for a just society.

[David Nieporent]

Only a liar or a fool would claim that physically printing something is equivelent to personally promoting it.

Once more: you misunderstand the compelled speech doctrine.

I believe in religious freedom.

I’m sure you sincerely believe that you do. The problem is that you believe in a cramped view of religious freedom, one that is little more than the freedom of speech.

[Nelson]

Cramped because I think your religion should only be relevant to you and not society at large? See, that’s the problem. My religious freedom is just as valid as yours. And I have no interest in being compelled by law to subjugate my religious beliefs to yours. And the First Amendment should protect me from you.

You and your “religious freedom” compadres start from the flawed and arrogant assumption that your religion should be made supreme by the power of the state. That fallacy should be opposed by all decent, Constitution-loving people in America.

The “religious freedom” folks are the bad guys on this subject, like the Confederates, the segregationists, the anti-suffragettes, and other immoral groups of the oast.

[David Nieporent]

Cramped because I think your religion should only be relevant to you and not society at large?

Cramped because your conception of freedom of religion doesn’t actually protect much of anything at all. The free exercise of religion is specifically called out in the Constitution for protection from “society at large,” but you seem to want to treat it as purely a matter of what one can do in the privacy of one’s home.

And I have no interest in being compelled by law to subjugate my religious beliefs to yours.

Nobody is “compelling you by law” to do anything. To use your terminology, you, the customer is “be gay, do gay things, and gay all over the place every gay day of their gay life.” Nobody is talking about forcing you not to.

You and your “religious freedom” compadres start from the flawed and arrogant assumption that your religion should be made supreme by the power of the state.

To be clear, you have no idea what my religion is, but you are still deeply, deeply confused. The only side seeking to invoke the power of the state is you. The web designer is not asking the state to do anything.

[Nelson]

“But people do believe the printer is promoting such speech, for money.”

Bullshit. They believe that they printed something for money that someone else wanted. That’s what printers do.

No reasonable person believes it says anything about the printer.

[David Nieporent]

No reasonable person believes it says anything about the printer.

So what? The printer is still being compelled to promote a message that he doesn’t agree with.

[not guilty]

The Tenth Circuit regarded this as a compelled speech case, but opined that the statutes satisfy strict scrutiny analysis.

[David Nieporent]

I realize that. I disagree with that conclusion, but at least it actually engages with the legal issues, unlike Nelson’s handwaving.

[Nelson]

He isn’t being compelled to promote anything. That’s the dishonesty of your position. What he thinks or believes is literally unconnected to what he is producing. It is a simple printing job, making something that a client asks for. The printer’s beliefs and opinions are irrelevant because the content has nothing to do with him.

Except, of course, that he feels like his beliefs and opinions should, for no rational reason, be relevant.

But he is so special that no one should be allowed to ignore his unhappiness and disapproval. Because, apparently, he is more special than everyone else.

It’s Jim Crow. Just with religion as the source of self-importance and special treatment instead of skin color.

And in another 50 years the “religious freedom” movement will hopefully be seen as the immoral, discriminatory, and self-righteous delusion that it is. Because the arc of history bends towards justice and “religious freedom” is unjust.

[David Nieporent]

He isn’t being compelled to promote anything. That’s the dishonesty of your position. What he thinks or believes is literally unconnected to what he is producing. It is a simple printing job, making something that a client asks for. The printer’s beliefs and opinions are irrelevant because the content has nothing to do with him.

Shorter Nelson: “West Virginia v. Barnette was wrongly decided.”

[Cheerio]

Pluralism and mutual tolerance are what is just. This new bigotry against people with traditional views is EQUALLY wrong as the old bigotry.

The true “arc of history” will see that, eventually.

[Nelson]

You can be as “traditional” as you like and no one has a right to stop you. Pointing out that “traditional” is often the same as “bigoted” isn’t a bad thing, it’s just an observation. No one can make you abandon your irrational hatreds, but at the same time you can’t force anyone else to adopt them. In the public square, all laws are equally applied, even if you hate the people who are accepted as equal.

[Nelson]

“As for what is popular, rights are not determined by that. Minority opinions, even those most view as despicable, are entitled to the same rights as opinions that are mainstream.”

I agree. I didn’t say you had no right to be a bigot. I said your bigotry isn’t relevant in this case. Or, to be fair, most of the “religious freedom” cases we are plagued with these days.

Bottom line is that right to swing your religion ends at my nose. You don’t get to force it on anyone else, just like no one else gets to force theirs on you.

[Bored Lawyer]

Except in these cases, the customer is forcing the merchant to provide the service, using antidiscrimination laws to do so. That’s the point in all of these cases — legal compulsion. That’s what the Constitution regulates — laws and legality.

If someone does not want to take their business somewhere because they view the owner as a bigot, they are free to do so.

[Nelson]

No, the customer isn’t forcing anything. The law prevents discrimination. That is what is preventing the bigot from acting on their bigotry. The business is legally prevented from discriminating against customers.

Jim Crow showed what the world looks like without antidiscrimination laws. “Religious freedom” is just Jim Crow dressed up in vestments.

[David Nieporent]

No, the customer isn’t forcing anything. The law prevents discrimination. That is what is preventing the bigot from acting on their bigotry.

This is pure sophistry. The customer is the one bringing the complaint.

I walk into a print shop and ask them to print up programs for my son’s bris. The owner says, “I think that’s a barbaric ritual and I won’t promote that disgusting Jew thing.” I can (a) run to a government agency or court, cry discrimination, and force the owner to serve me (or be financially ruined for not doing so); or (b) go somewhere else. The choice is mine, and if I choose (a), I am indeed forcing him to do it. That my weapon is “the law” doesn’t change the fact that I am the actor.

[Nelson]

The cistomer has the right not be discriminated against by the business owner. That’s the point of nondiscrimination laws. Because Jim Crow showed that the bigots were the ones in the wrong and that supporting bigotry in commerce was bad for everyone, not just the blacks that were being refused service.

Same as the “religious freedom” bigots of today. It’s Jim Crow allnover again.

[David Nieporent]

The cistomer has the right not be discriminated against by the business owner.

What is the source of that right? Do you mean that there’s a statute requiring non-discrimination? Sure, but that’s not the same thing as a right.

But what does that have to do with what I said? Your scenario still involves the customer compelling the business owner to serve him. It’s not a self-executing law; the customer is choosing to invoke it.

[Nelson]

The custome is being refused because the owner is a bigot. They aren’t forcing the owner to stop being a bigot. They aren’t forcing to owner to do anything except treat them like any other customer who comes in with a job that includes content that the owner doesn’t agree with.

You keep trying to pretend that the owner is being forced to do something extraordinary. On the contrary, he is just being “forced” not to discriminate. Because, you know, that’s the purpose of anti-discrimination laws. And he has to follow them like every other business owner.

Because he isn’t special. He doesn’t get special rules. He doesn’t get to pick and choose the laws he’ll follow bexause he chooses to be a bigot.

He has to follow all of the same laws as everyone else. And, to religious bigots, that is unacceptable.

[David Nieporent]

The custome is being refused because the owner is a bigot.

Assuming that’s true — and it’s just namecalling — so what? That really doesn’t help your case, since it just underscores that this is in fact about his views. (And, to quote Kirkland: bigots have rights, too.)

They aren’t forcing the owner to stop being a bigot. They aren’t forcing to owner to do anything except treat them like any other customer who comes in with a job that includes content that the owner doesn’t agree with.

But that’s wrong. In fact, the owner is free to treat any other customer who comes in with a job that includes content that the owner doesn’t agree with the same way. If the customer demands that he produce content such as “MAGA” or “1488” or “Let’s go Yankees!” the owner is free to say, “Get the hell out of my store.”

You keep trying to pretend that the owner is being forced to do something extraordinary.

No, I keep trying to pretend — very convincingly, because it’s true — that the owner is being forced to do something.

On the contrary, he is just being “forced” not to discriminate.

Why are you putting forced in scare quotes? Assuming this is being correctly conceptualized as discrimination, that’s true: he’s being forced not to discriminate. No scare quotes needed.

He has to follow all of the same laws as everyone else. And, to religious bigots, that is unacceptable.

So you think the free exercise of religion is the freedom to act the same way as everyone else?

And once again: this is a free speech issue, entirely separate from any religious issue.

[Nelson]

You’re missing the most obvious and, unless you’re predisposed to believe that religious bigotry (which this, by definition, is) is supreme, reasonable solution: if you can’t follow the same laws as everyone else, you don’t get to run a business.

To me, it’s pretty simple:
A) everyone is treated equally under the law plus
B) someone thinks that they deserve to be treated better than everyone else equals
C) princess hater either follows the law or does something else for a living.

“Religious freedom” doesn’t mean “special treatment under the law”. That should be anathema to anyone who believes in the rule of law.

The fact that it is a textbook case of bigotry and a direct equivelent to Jim Crow laws in the South just makes it right vs. wrong as well as legal vs. illegal.

[not guilty]

No one is being “forced” to do anything. Civil disobedience is always an option. (Jack Phillips never baked the cake.) What this Plaintiff wants is for civil disobedience to be consequence free.

[David Nieporent]

The exercise of fundamental rights should be consequence free (at least as against the government).

[Nelson]

Your right ends at your nose. Stop forcing it on others.

[David Nieporent]

Again: you are the one advocating the forcing.

If the vendor gets his way, nobody is compelled to do anything.

If the customer gets his way, the vendor is compelled — which sounds a lot like forced — to provide the service.

[Nelson]

If the customer gets his way, the vendor has to follow the law like everyone else. Sounds horrible.

Because everyone knows equal protection under the law is for chumps.

[David Nieporent]

Nelson: “He’s not being forced… but it’s good that he’s being forced.”

And, of course, forcing people to follow the law in violation of their conscience does sound horrible. Do you also react this way to conscientious objectors to military service?

Do you sneer at them and say “You’re just being asked to follow the law like everyone else. Sounds horrible.”?

[Nelson]

If by “forced” you mean “expected to follow the same laws as everyone else”, I agree they are being forced. Just like every other business owner in America.

If by “forced” you mean that they are somehow being deprived of something, you are fooling yourself. Or just a firm believer in Christian supremacy.

Or, I guess, a full-blown theocrat who believes that America is a Christian nation rather than a nation of mostly Christians. Which is an entirely different immoral belief.

[David Nieporent]

You don’t get to force it on anyone else, just like no one else gets to force theirs on you.

You are, as I said above, confused about who is forcing who. The vendor (here, a web designer, but it could be anything) is not forcing anything on anyone else. He is asking for what Brandeis called “the most comprehensive of rights, and the right most valued by civilized men”: the right to be let alone.

[Nelson]

No one is forcing the business owner to do anything they don’t do on a daily basis, which is publishing/designing things that they, personally, don’t believe.

The only difference is that they don’t like the beliefs of these particular people.

Being a bigot and wanting to be legally allowed to act on your bigotry despite antidiscrimination laws are two different things. You can do the first, you can’t do the second.

You just don’t accept that fundementalist Christians aren’t more important or special than any other citizen.

Again, the principle you are ignoring is that the law applies equally to everyone. Even religious zealots.

[David Nieporent]

No one is forcing the business owner to do anything they don’t do on a daily basis, which is publishing/designing things that they, personally, don’t believe.

You are forcing the business owner to do something. Whether he sometimes does that thing voluntarily is irrelevant to whether he is being forced to do it in this particular situation.

Moreover, you are glossing over the difference between “I don’t hold this particular view” and “I strongly oppose this view.”

The only difference is that they don’t like the beliefs of these particular people.

Ding ding ding! Now you’re getting it! It’s different, because this is a viewpoint that they disagree with.

Being a bigot and wanting to be legally allowed to act on your bigotry despite antidiscrimination laws are two different things. You can do the first, you can’t do the second.

You can indeed do the second, at least some times. See Boy Scouts vs. Dale, see Hurley vs. Irish American Gay, Lesbian, and Bisexual Group of Boston.

You just don’t accept that fundementalist Christians aren’t more important or special than any other citizen.

Your view of religious freedom renders it a non-operative constitutional right. But you don’t seem to grasp that this is a free speech issue, not (merely) a free exercise issue. (To be sure, the petitioners would like to litigate both issues — but as you can see from Eugene’s post, the Supreme Court has granted cert only on the speech issue.)

[Nelson]

“Ding ding ding! Now you’re getting it! It’s different, because this is a viewpoint that they disagree with.”

Your viewpoint, no matter how strongly held, isn’t a valid reason to be allowed to ignore the law.

“Moreover, you are glossing over the difference between “I don’t hold this particular view” and “I strongly oppose this view.””

And why should the vehemence of your disagreement with the content allow you to ignore the law? That’s the part you keep avoiding. Laws apply to people who vehemently disagree with them because your unhappiness us irrelevent to the rule of law.

“this is a free speech issue”

Explain to me what freedom of speech the owner is being deprived of? Because the only one producing content is the customer. The business owner isn’t saying anything. But he sure is trying to stop someone else from exercizing free speech. The owner isn’t saying anything, being prevented from saying anything, or is having his free speech rights constrained in any way.

I get that you are firmly in the “religion means you are more special” camp. You seem to be incapable of understanding that your religious beliefs are irrelevant to generally applicable laws. This latest version of Jim Crow that the religious right is pushing is just as immoral as the last one. Given enough time, it will also be overcome by decent people. In the meantime, though, the dead-enders will force us to suffer through their temper tantrum.

[Josh R]

Explain to me what freedom of speech the owner is being deprived of? Because the only one producing content is the customer.

It seems to me the website designer is using their creative skills to produce content.

I’m pretty sure David does not believe that religion is more special. His opinion is informed by his support for freedom of speech and his libertarian instincts.

[David Nieporent]

I’m pretty sure David does not believe that religion is more special. His opinion is informed by his support for freedom of speech and his libertarian instincts.

I do think he gives the free exercise of religion short shrift, but this case can be resolved on speech grounds without the need to address religion. (Which is, in fact, what SCOTUS is doing! It narrowed the QP to address only the speech issue.)

[Josh R]

I’m curious David. What is your view of the Free Exercise aspect of this case?

[David Nieporent]

This hopefully won’t sound like too much of a copout, but I don’t know. (I’m glad it’s being litigated as a free speech case.) I’ve thought a lot more about free speech than I have about free exercise, as a constitutional doctrine.

I know that the latter has to be broader than Nelson’s conception of it. It’s not just the naked right to believe and pray what one wants, or it’s nothing more than a subset of free speech. (Yes, I think Smith was wrongly decided.) But I don’t think it goes as far as RFRA, either. And saying the magic words “strict scrutiny” doesn’t really tell us how to resolve free exercise claims. I am confident that no court would say that — at least outside the core of religious institutions (e.g. the ministerial exemption) — free exercise (even when bolstered by a RFRA) can simply override the Civil Rights Act.

I guess for the purposes of this narrow Supreme Court case, free exercise gets us to the same place as free speech, because this isn’t a discrimination case. They aren’t seeking to be allowed not to serve gays at all; they’re only talking about gay weddings.

[Josh R]

I don’t think having doubts about the Free Exercise analysis is a cop out. To the contrary, you sound a lot like Justices Barrett and Kavanaugh (and in part Breyer) from Barrett’s Fulton concurrence. I am squarely with Eugene in believing Smith was right. But, I appreciate your opinion that even RFRA can’t trump the Civil Rights Act.

However, this is a case of discrimination because the final authority on how to interpret the statute says so. And as a normative manner, I think they got it right because gay weddings are conduct inextricably linked to being gay (see similar dicta from Christian Legal Society).

[David Nieporent]

Explain to me what freedom of speech the owner is being deprived of?

Freedom of speech has long long long long long been understood to include the freedom not to speak. Have you honestly not heard of the compelled speech doctrine?

Because the only one producing content is the customer. The business owner isn’t saying anything.

I mean, I think the business owner is overcharging the customer if he’s not actually producing anything in exchange for the money paid by the customer.

But he sure is trying to stop someone else from exercizing free speech.

In the same way that my not letting neo-Nazis give speeches in my living room constitutes me trying to stop someone else from exercising free speech. Which is to say: no.

The owner isn’t saying anything, being prevented from saying anything, or is having his free speech rights constrained in any way.

The owner is saying whatever content is included on the web page is being forced to create. That is a constraint on his free speech rights.

[Nelson]

“Freedom of speech has long long long long long been understood to include the freedom not to speak. Have you honestly not heard of the compelled speech doctrine?”

No one is forcing them to not-speak, either. Their speech isn’t involved at all, since the content isn’t coming from them at all. You’re trying to say that any business activity that is utilized by homosexuals is somehow compelling speech from the business. Which is so ridiculous as to be farcical.

Gay people are allowed to be gay, do gay things, and gay all over the place every gay day of their gay life. Buying a service from a business doesn’t implicate or involve any speech on the part of the business, nor does it compel any speech or position from the business.

Unless you are inherently dishonest and believe that anything gay entering the proximity of a religious bigot suddenly compels something other than a simple business transaction. If you believe that, there’s no help for you.

[David Nieporent]

No one is forcing them to not-speak, either.

Facepalm. You’re forcing — or at least trying to force— them to speak when/what they don’t want to.

You didn’t answer my question: have you not heard of the compelled speech doctrine?

Their speech isn’t involved at all, since the content isn’t coming from them at all.

I mean, it literally is. They’re the ones posting it. What you apparently mean is that they’re not the ones coming up with the content. Now, that’s probably not even true — the designer almost certainly does have her own input into the website — but even if it were, even if 100% of the content was drafted by the putative customer, the designer is still the one actually speaking it.

You’re trying to say that any business activity that is utilized by homosexuals is somehow compelling speech from the business. Which is so ridiculous as to be farcical.

Then perhaps you should consider instead that you just don’t understand the discussion? That’s not what I am “trying to say.” I am talking about business activity that is speech. If the petitioner here were a dentist or a car dealer or TV repairperson, then compelling her to serve a gay customer would not be compelling speech. Filling cavities or selling cars or fixing TVs are not speech acts. But the petitioner here is someone who generates speech. Creating a website is pure speech.

Buying a service from a business doesn’t implicate or involve any speech on the part of the business,

If the service that you’re buying is speech, then it does! If the web designer did not speak, there would be no service to buy. There’d be a blank screen.

[David Nieporent]

If a baker makes a cake saying, “You’re the greatest, Sally”, no honest person would believe the baker is supporting Sally being the greatest.

You misunderstand the compelled speech doctrine. It does not turn on whether other people would think that the opinion was that of the speaker. No honest person could’ve thought that the Maynards were personally espousing the view “Live free or die” — but they still couldn’t be compelled to disseminate that message.

This isn’t about aritistic expression or freedom of speech. It never has been. It is about people who won’t accept that America has, in an overwhelming way, rejected their bigotry and are trying to use the legal system to force others to follow the small-minded beliefs of their dwindling minority of Christians in America.

You’re very confused about who is trying to force whom to follow their beliefs.

It is the same playbook that they use to try to force abortion to be outlawed in a country that dominantly supports choice.

You’re also very confused about how democracy works.

[Josh R]

We remain in disagreement over how Rumsfeld described the compelled speech doctrine. When the government requires you to speak their message, we agree whether the message was thought to be the opinion of the speaker does not matter. However, when the government requires you to host a third-party’s speech, I continue to think (in opposition to your viewpoint) whether the message was thought to be the opinion of the speaker matters.

In the case of a web site designer, I have become convinced customizing speech through creative design suffices to conclude the speech is in part the designer’s. However, in the case of printing signs with no customization or creativity, the compelled speech doctrine is not violated.

Having said all that, I think refusing to print a “God Hates Fags” sign does not violate most (if not all) anti-discrimination statutes in the first place. This case is distinguished from refusing to serve a same-sex wedding because the latter is based on objection to conduct which is inextricably linked to being gay, while the former is objection to a viewpoint rather than conduct.

[David Nieporent]

However, when the government requires you to host a third-party’s speech, I continue to think (in opposition to your viewpoint) whether the message was thought to be the opinion of the speaker matters.

And I continue to point out that your position founders on the shoals of Wooley v. Maynard. That was a “hosting” case, not a speaking case. And if your interpretation were correct, then the state of New Hampshire should have prevailed. Nobody thought a message pre-printed on every license plate in the state was the opinion of any individual driver.

[Josh R]

The Rumsfeld Court did not view Wooley as a hosting case

Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. […] And in Wooley v. Maynard we held unconstitutional another that required New Hampshire motorists to display the state motto–“Live Free or Die”–on their license plates. […] Our compelled-speech cases are not limited to the situation in which an individual must personally speak the government’s message. We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message.

.

[David Nieporent]

Well, they were wrong; it definitionally is. The Maynards weren’t personally required to say something; they were required to carrying the government’s message.

[Josh R]

That’s not a bad argument. However, claiming SCOTUS was wrong ought not hold sway with lower courts. At the very least, we have to treat hosting government speech differently than hosting third-party speech.

[David Nieporent]

I think Wooley vs. Maynard stands on its own, and an inartful description of it in a later case doesn’t alter its facts or holding. It’s kind of like how the Other Josh keeps trying to use Buck v. Bell to discredit Jacobson. The former did distort the latter, but the fact that it did so doesn’t change the fact that Jacobson upheld mandatory vaccination laws.

(As an aside, I think that FAIR is a problematic case to use in these discussions, because so many of its facts make it sui generis. It’s true that the schools in question did try to litigate it as a compelled speech case, but SCOTUS really didn’t analyze it that way. Sure, it confronted their argument, but only to wave it off and said, “Nah, this is really about conduct, not speech.” (And it intimated that it probably would’ve upheld it as a conditional funding case, too.)

[Josh R]

But even on its own, Wooley is limited to hosting government speech, not third-party speech.

[David Nieporent]

Is there a meaningful distinction between the two? (Note: this is not a rhetorical question.) Is it better, or worse, from the perspective of the 1A if the speech is government speech rather than third-party speech?

[Nelson]

A more succinct way to say it is that the web designer doesn’t have a free speech claim because it isn’t their speech. They aren’t saying anything, no one in their right mind believes that they are saying anything, and claiming someone else’s website is somehow their speech is a prima facie case of lying and dishonesty.

[Josh R]

That’s what I felt at one point. But I changed my mind when considering the designer shapes the message through his creativity. That’s enough for me to conclude his speech is implicated.

[Nelson]

If the means of presenting the content is the web designer’s job, but the content itself is probuded by the client, I don’t see how the designer is the speaker. Nor do I think that anyone believes that the content of a website is an expression of the designer’s beliefs.

An ad agency that makes a commercial for Coke, for example, isn’t assumed to be pro-Coke. They’re pro-getting-paid.

[Josh R]

I agree if the web-site designer does nothing more than take the client’s content and host it without alteration. However, I doubt that is often the case given for less money you can find someone to host your unaltered content.

If the ad agency is shaping Coke’s message through creative customization, I disagree that the speech is strictly that of Coke’s.

[David Nieporent]

If the means of presenting the content is the web designer’s job, but the content itself is probuded by the client, I don’t see how the designer is the speaker.

Is he speaking? ​Then he’s the speaker.

If you write a speech, and pay me to recite it, I am the speaker. That you wrote it, that it’s your thoughts and ideas and words, does not change the fact that I am literally the one saying the words.

Even if everyone understands that I am a paid speaker rather than the author of the speech, that doesn’t change the fact that I am literally the one saying those words. That makes me (wait for it)… the speaker.

[Nelson]

No, he isn’t speaking. That’s the point. The content isn’t coming from the web designer.

No one looks at a web site and thinks “look what this web designer is saying”. Because that would be a stupid thing to think. The not-stupid (and blindingly obvious) thought is “look what the website owners are saying”.

In my area Lamar has those “The Truth” billboards all over the place. No reasonable person thinks Lamar is saying anything about The Truth. Or Pond Lehicky. Or the Flyers. Or Steve Singer Jewelers. Or anything else their billboards advertise. Because thinking that would be insane. Just like thinking a web designer is implicated in someone else’s content.

[David Nieporent]

No, he isn’t speaking. That’s the point. The content isn’t coming from the web designer.

Look, I understand that you are deeply passionate on the subject, but why bother to respond to a comment if you aren’t even going to read it first? It. Doesn’t. Matter. Where. The. Content. Is. Coming. From. It matters whether the person is saying it. If she is, then she is speaking.

No one looks at a web site and thinks “look what this web designer is saying”.

That may or may not be true. (I think it’s an overbid. I think a lot of people who identified the designer who designed the website of the Proud Boys or the Westboro Baptist Church or the like would protest that anyone who would do is racist/homophobic/etc.) But again, even if you’re right: That. Doesn’t. Matter. The protection against compelled speech does not turn on whether listeners would believe it was the speaker’s view. The constitutional harm is compelling the person to say it, not merely in causing other people to think the speaker believes it.

Have you read Wooley vs. Maynard? Have you read Miami Herald vs. Tornillo? NIFLA vs. Becerra? Janus vs. AFSCME? West Virginia vs. Barnette? PG&E vs. Public Utility Commission?

None of them turned on whether people were confused about whose ideas those were.

[Nelson]

PS – You are not the speaker, no matter how many times you claim it. Any more than Reason is the speaker of my posts (or yours, for that matter). Your position fails the “reasonable person” threshold with room to spare. Also, for that matter, the “logical conclusion” threshold. But it sails over the “farfetched and irrational” bar by miles, landing firmly in the realm of “grievance and whining”.

[David Nieporent]

In fact, Reason has a first amendment right to delete your posts, or mine, for exactly the same reasons we’re discussing here. They cannot be compelled to disseminate speech they disagree with.

[CocoN8]

The web site designer is a speaker because they make creative choices about where elements are placed on the screen to best draw the eye, about what elements have highest priority and should take center-stage, about what elements can be buried in hamburger menus or sub-pages, about what colors communicate the proper mood, and so forth. The entire package of website design, links, and menus communicates layered messages. The client may have direction over the general message, but the website designer uses his or her creativity to not only deliver that message most effectively but to add layers under layers to that message.

[Sarcastr0]

What you are describing is a colorable argument, but it is not currently the law.

Compelled action makes me itch, though mostly if it’s crafted specific to the customer; if it’s just one more order, then quit yer whining about how you don’t want to serve those types.

[Josh R]

In Elane Photography, the New Mexico Supreme Court held for the would-be customer along the lines argued for by Nelson.

[ReaderY]

The 10th Circuit opinion being reviewed characterized the website creation involved as speech but said that the state of Colorado has a compelling interest in compelling it.

And I don’t think the 10th Circuit was wrong to characterize web site design as speech. Hurley said that a parade is speech. Moreover, the certified question is expressed in general terms: can the state compel an artist to create or not create a work of art. If you disagree with the 10th Circuit and think a web site designer for some reason isn’t an artist – maybe “press” only refers to physical pressing and anything on a computer gets no protection – still the Supreme Court’s job is to review the law based on the facts as the courts below found them.

[ReaderY]

Question. Suppose a state enacts an eminent domain law giving it the tight to acquire any artwork, including all art yet to be, at let’s assume a fair price, and let’s suppose it has a valid public purpose in doing so. With that law enacted, can the state then compel artists to make exactly what it wants and nothing else? After all, if the only question is who owns the art, the state has taken care to make clear that it owns the art. Does this solve everything? Does the issue of the state compelling a creative artist to bring an artwork into being, or prohibit its creation, raise no issues separate from ones of property ownership? Is it just a question of whose speech it is, seen solely from a property ownership viewpoint?

[Nelson]

Don’t even get me started on eminent domain. You are lumping together a bunch of unrelated issues in an attempt to make it seem like an insoluable dilemma.

It isn’t. You keep your religion to yourself and I’ll do the same. It’s a simple concept that the legions of the self-righteous can’t seem to grasp.

Everyone is subject to the same rules. Equal protection under the law. America has no kings or queens. All men are created equal. It’s a pretty universal theme in America.

[Bored Lawyer]

What? Eminent domain is just a means of acquiring property, not forcing someone to create property.
The state can take your land to build a highway, using eminent domain. It can’t use that to force you to build the highway.

[Nelson]

I am adamantly opposed to eminent domain. It is, however, unrelated to the discussion at hand.

No one deserves special treatment under the law. Especially if they can claim that speech completely unconnected to them and their ability to practice their religion is a First Amendment violation. This business owner is not damaged by creating something that he doesn’t believe in. He does it all the time. It’s called advertising. It’s just that this time it bangs his bigotry bone, so this time he wants to push back.

Unless you are saying that anything and everything he prints are things he supports and believes, he is just upset by this particular thing that he doesn’t support because he wants to discriminate aginst gay prople. And that’s illegal.

[Bored Lawyer]

Their talents and resources are being used to promote and express speech they disagree with. Like forcing a newspaper to print a rebutall to one of its editorial — which the Supreme Court said violates the First Amendment, I believe about 50 years ago.

[Nelson]

No, they aren’t. They are doing the same job they do for every other client that comes into their shop advertising something that they don’t believe. Which is a daily occurance in the web design/advertising business.

It literally jas nothing to do with them or their religion. Except thatbthey want it to in this particular case because they have bought into the coercive Christianity argument that theybshould be allowed to force others to live tbybtheir beliefs. It’s nonsense.

Theit talents and resources are being used to create a website. They are not required to agree with it, support it, agree with it, or in anynother way be impacted by it. But they do have to treat the cluent like every other client whose claims/content/advertising they disagree with. Because it isn’t making them change their beliefs one iota.

But it does make them feel sad. And we can’t have bigots with hurt feelings, can we?

[David Nieporent]

that theybshould be allowed to force others to live tbybtheir beliefs. It’s nonsense.

How does not creating a website force anyone else to live by their beliefs?

But they do have to treat the cluent like every other client whose claims/content/advertising they disagree with.

That is both factually and legally wrong. In fact, they are not common carriers, and therefore not required to promote “every other” claims/content/advertising they disagree with.

[Sarcastr0]

Their talents and resources

Oh come on. That’s never been the standard. One more pair of shoes or handbill is not going to break anyone. I get your general point, but you need to narrow it some.

This would be an exception that would swallow the rule, and you know it. That rule being the Civil Rights Acts.

[Bored Lawyer]

Do you think that Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) was correctly decided? The newspaper could easily have printed the candidate’s rebuttal under a disclaimer (we are being forced to print this by Florida law).

[Josh R]

As the Court said in Rumsfeld

In Tornillo, we recognized that “the compelled printing of a reply takes up space that could be devoted to other material the newspaper may have preferred to print,” and therefore concluded that this right-of-reply statute infringed the newspaper editors’ freedom of speech by altering the message the paper wished to express.

I think the same principle applies to the limited talents of web site designers, but not platforms that do nothing more than host unaltered content where space is not an issue.

David Nieporent and I disagreed on a similar hypothetical: does it violate the compelled speech doctrine if Kinkos is required to allow a customer to use the self-service copy machine to make copies of a message Kinkos disapproves of? David thought so. I disagreed. However, if Kinkos helped to design the look and feel of the output, then I agree the compelled speech doctrine is triggered.

[David Nieporent]

Er, I don’t remember it that way. Obviously I have a libertarian objection to requiring Kinkos to allow a customer to use the self-service copy machine, but I don’t think I have a 1A objection.

I think my objection was if you brought in a print job to Kinkos and asked them to make copies.

[Josh R]

If Kinkos makes copies, perhaps that implicates a limited resource that in turn triggers the compelled speech doctrine. However, that strikes me as wrong for two reasons: 1) the resource is in no way comparable to either the space in a newspaper used for one of its central purposes of expressing opinions or the time of a creative artist in shaping content, and 2) why wouldn’t the self-service machine also be covered since it too is a limited resource owned by Kinkos.

[David Nieporent]

A more succinct way to say it is that you’re wrong. See Wooley v. Maynard.

[Cheerio]

Enough with this gaslighting of saying people are being “dishonest” or some such every time they disagree with you.

Fact: Of all the millions who disagree with you, at least *some* of them are smart, serious people of good faith.

So just engage the actual substance of the debate, instead of evading it…

[Nelson]

David, do you believe that there are limits to free speech and religious freedom?

And, if so, would you see Jim Crow as a valid argument against unfettered free speech/religious freedom claims of businesses?

[benji]

How does a law requiring something (Jim Crow) speak to the free speech claims of a business that doesn’t want to comply with that law?