20 Years After You Can't Say That! Was Published, Feeling Vindicated by 303 Creative

Twenty years ago, the Cato Institute published my book, You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws. The basic theme of the book was that as the scope of antidiscrimination laws has expanded, these laws increasingly infringe on bedrock constitutional liberties, especially freedom of expression. To the extent that there is a conflict, the rights protected by the Constitution should win out over claims that the infringements are justified by an asserted compelling government interest in "eradicating" discrimination.

Cato tried very hard to place the book with a publisher, but constantly ran into ideological opposition. I couldn't help but think how ironic it was that book editors, of all people, thought a book was too favorable to freedom of expression. Indeed, one publisher even suggested that the book's relatively tame libertarian theme was "aggressively hostile … to standard social mores." (see excerpt below, from when the book had a different working title).

This past term, in the 303 Creative case, the Supreme Court explicitly rejected the notion that freedom of speech can be infringed by the government in the name of the government's asserting compelling interest in ensuring "equal access to publicly available goods and services." While I can't take personal credit for this holding, I'm pleased to say that the position I took twenty years ago, which struck book editors as so radical as to be "aggressively hostile … to standard social mores," is now the law of the land.

Comments

[David Welker]

Your old title, "Equality at Any Price" sucked.

In fact, restricting speech does not create or ensure equality, much less is restricting speech the "price" we must pay for equality. Just the opposite. Instead, restricting speech creates inequality because those who decide which speech is forbidden end up being "more equal" as George Orwell would say.

Free speech is necessary to ensure equality because it ensures that everyone can be heard. Free speech is necessary to democracy, in which every person gets a vote, and most importantly, gets a voice that allows them to persuade other in acts of democratic deliberation.

If anything, while your early argument may now be better embedded in the law, I believe we have a bigger culture problem nowadays with increasingly unembarrassed and self-righteous embrace of censorship, especially by the left.

A final point. I don't get the idea that a publisher needs to agree with the thesis of a book to publish it, anymore than a librarian needs to agree with Mein Kampf or Das Kapital to make them available in the library. That they would not publish your book really was about political correctness. The denial does not feel credible; would the publisher REALLY say that they agreed with everything that all the books they published said? Maybe with some specialty publisher that insisted on publishing only "conservative" books or "liberal" books, but for a general purpose publisher, I would HOPE that they are publishing a substantial amount of material they personally disagree with.

[Alpheus W Drinkwater]

Two points:
1) Free speech is a critically important value, but it isn't the only value. There are other values that need protecting, and it's always a balance. For instance, having a representative government that is answerable to the people and not just to large money donors may mean that some "speech" may need restricting, particularly if that "speech" is spending money. Also, having all people being treated equally in public accommodations is an important value. Perhaps we've not had the best balance in the past, but free speech doesn't automatically trump every other value because reasons.

2) It isn't politicians on the left who have been passing the recent state laws in Florida and other red states limiting what can be taught in public primary and secondary schools, or public universities. There is plenty of pro-censorship measures coming from all sides of the political spectrum.

[BravoCharlieDelta]

Think about your #1 issue for a minute. The politicians are so easily corrupted and influenced by citizens political spending, that you want to give these politicians MORE control over them.

What do you think these corrupt politicians are going to do with that extra power? Sell it like they've sold all their other power.

It's so weird to see people argue that the problem of political corruption can be solved by giving corrupt politicians more power and control.

[Alpheus W Drinkwater]

That would've been weird if I'd actually argued for that.

[David Welker]

You kind of just did. Implicitly.

If First Amendment rights are going to be balanced based on "other values" who exactly decides what those other values are? Judges, perhaps. But judges are chosen by politicians.

The idea of balancing is just way too general and discretionary to be useful. There are places in the Constitution that require subjective judgment. For example, what punishment constitutes cruel and unusual punishment. But First Amendment rights? Well, you don't want those to be based on whatever judges ate for breakfast. They are just too central to democracy.

[Purple Martin]

Implicitly is doing an awful lot of work there…including somehow incorporating the meaning, messages I am uniquely capable of understanding.

[shawn_dude]

There are 26 other amendments to the US Constitution. These (generally) represent "other values" important enough to get added alongside freedom of speech. And, as we know, freedom of speech isn't absolute; it has its own limits which represent a number of value-based balancing acts themselves.

[David Welker]

Freedom is speech is a right that is so fundamental that you literally could not have a true democracy without it.

And the Constitution and its amendments are not merely a list of contestable values that judges are able to balance away based on their feelings.

That attitude is completely lawless.

[David Welker]

Alpheus:

1)

Your talk of balancing seems to forget the issue of power.

Tell me, do so-called non-politicians get to limit (what you call balance) the free speech rights of politicians and their appointees or is it the opposite? And if it is the opposite, aren’t we turning politicians into rulers rather than public servants?

I am sorry, but it isn’t up to you to limit the power of other people to speak because YOU have values that YOU think are as important as their right to speak. What are the values anyway? In Communist China, the values that are used to control speech are bad values. And they are also entrenched values.

Your presumption that entrenching values that trump speech (in the name of balancing, how innocuous) is a good thing is based in the ASSUMPTION that it is you or your allies that will do the entrenching.

Free speech is always about power. Who has it and who doesn’t. The position the we should support free speech is the position that ordinary people who govern themselves should have the power.

2. Money in politics doesn’t matter as much as was once assumed. Thankfully. This is a non-issue. People are not brainwashed by commercials. Spending doesn’t turn Democratic districts into Republican ones or vice versa.

3: Regulating the speech of administrators is fine. What is problematic is regulating the speech of students. School is supposed to teach them HOW to think, not WHAT to think. Trying to use public schools as a forum to indoctrinate young people in values contrary to their parents is improper.

I agree with you that threats to free speech comes from both sides. But it does not come from both sides equally at all points in our history. In the past, threats to free speech arose more from the right. Now, they arise from the left. Interestingly, censorship attempts in this country are usually accompanied by a religious or quasi-religious self-righteousness. There is, after all, more than a little bit of arrogance in thinking YOU should be the one to decide the “balance” between free speech and other values.

That doesn’t mean that there is no “balance” by the way. For example, free speech does not mean true threats can’t be curtailed. But when you start getting into core free speech, that is where the problem arises.

[Alpheus W Drinkwater]

I'm not saying any values trump free speech, and I'm not saying that MY values are what are important - other than the fact that I am a voting citizen of this country. You are reading something into my comment that I didn't say. I'm saying that society as a whole has values that they feel are important, and sometimes they work in opposition to each other. Thus a balance needs to be struck. Being absolutist about any one particular value makes no sense. As you yourself mentioned, sometimes absolute individual free speech has to give way for the benefit of society as a whole.

It isn't me who determines where the balance should be in these situations. It is representative government, and it is courts. I can express an opinion about where I think lines should be drawn, as can anyone else.

I think you are wrong about money and politics. Money is flowing into political campaigns in record amounts, and these people and groups who are donating huge amounts don't do it for no reason. Large donations gets you time and attention from politicians. It gets you access, and it gets you input. That's the problem. The Buckley decision and its progeny make that problem worse. In my opinion, good balance wasn't achieved between two competing values.

[David Welker]

"As you yourself mentioned, sometimes absolute individual free speech has to give way for the benefit of society as a whole."

But not based on the evolving values of judges and politicians or even society. Instead, based on historically recognized exceptions.

Otherwise, you have a lock in effect where people aren't able to challenge yesterday's values. What we value today is different than what we values in the past. And what we value tomorrow will be different than what we value today.

Free speech isn't just a value. It is also a method for ensuring that we can discuss what we value and change what we value. Free speech is what allows us to respond rationally to new evidence and change our minds.

It isn't JUST a value. Values change pretty quickly.

[Randal]

Instead, based on historically recognized exceptions.

Otherwise, you have a lock in effect where people aren’t able to challenge yesterday’s values.

Or, focusing on historically-recognized exceptions is what creates the lock-in effect.

[Alpheus W Drinkwater]

Those "historically recognized exceptions" are an excellent example of balancing different values. After all, 1A doesn't say "...no law abridging freedom of speech, except for..." But the law has recognized that there are other competing values at stake, for instance that one's words don't cause harm to other people.

I think we're talking past each other a little bit. We both believe in the critical importance of free speech, and we both agree that there need to be exceptions where free speech rights give way. I think we probably just disagree on where lines should be drawn. That was my only point. I think free speech absolutists forget sometimes that there are other things that need protection.

[David Welker]

I think we aren’t talking past each other.

What is “harm”? Are hurt feelings harm? Are politically incorrect statements harmful? Are the bad ideas of your political opponents that harm society if implemented harmful?

It is absolutely incorrect that we can just invent new exceptions to this fundamental right just because we feel like it doesn’t lead to optimal results in every situation.

The First Amendment isn’t supposed to be optimal. The values you call “needs” are more what I would call “wants.” You would LIKE to see the First Amendment curtailed because you are SO SURE your other values matter more.

But what about you being wrong? And who the hell are you to say what other people can say in a free country where they are supposed to be your equal???

[Alpheus W Drinkwater]

I never wrote that "we can just invent new exceptions" to free speech. Your replies seem to be mainly straw men. Or else quibbles about what exactly is meant by "values." And you continually ask me who I think I am to "say what other people can say..." But I never said I should determine what other people say. Nor did I ever say my values matter more than the first amendment. I don't see much point in continuing this. Pointing out the various straw men you keep inventing is tiresome.

[David Welker]

Regarding money, I don't mean to imply it isn't a problem. I do believe it is a problem.

But, you can't restrict money being spent to formulate speech anymore than you can restrict factions. Because the evils resulting from doing so would be far greater than the benefits, even to the point of creating a pathway to destroy the free speech that is necessary for democracy.

If politicians can somehow prevent their opponents from spending as much money, while creating rules that allow them to spend more money, they will do so. We already see how the political parties play games with things like ballot access for the benefit of insiders. Part of the reason we only have two parties is because we have a winner take all system. But another reason is because the two parties work together to keep it that way.

By the way, the rules have already had unintentional consequences. Candidates are free to donate unlimited sums to their own campaigns. Since campaign money is more valuable than Super PAC money, this gives an artificial advantage to people who are themselves already independently wealthy.

Overall, both parties are able to thrive in our world where there is a lot of money in politics. And outcomes show that, beyond a certain point, spending more money has diminishing returns. People aren't just going to change their beliefs because you spend more and more money urging them to. Some undecideds can be influenced on the margins, but if both campaigns have resources, that can mostly cancel itself out.

Overall, money in campaigns has turned out to be less of a problem than I expected it to be. And that is a pleasant surprise.

[Alpheus W Drinkwater]

I assure you the last thing that worries me is that "both parties are able to thrive." Mark me down in the Margrave of Azilia school, where the two major parties are concerned.

[Stephen Lathrop]

Trying to use public schools as a forum to indoctrinate young people in values contrary to their parents is improper.

Not in cases where parents inculcate their kids with values which encourage racism, bullying, and physical attacks on fellow students in and around schools. Schools, no less than private workplaces, are purposeful institutions. Neither type can function without administrative authority to enforce comity, including comity in expression.

Free speech absolutists are crazy to insist otherwise. What free speech absolutism gets you in public education is valorization of the busing riots in Boston, with bigots parading as patriots, and demanding suppression of black rights to prove it. It also gets you lynch-mob style bullying targeting gay students and kids with Asperger's.

As always, to insist on ideological purity in politics—even 1A-related politics—concludes with advocates who insist they can posit axioms, and then reason from those to deduce facts about what actually happens. Experience is a more useful guide to policy. Advocates who reject what experience teaches in favor of ideological purity end up all of a type, whether they start as communists, Nazis, free market champions, or 1A absolutists.

Having said that, of course it is unwise and unsafe to take as a principle that government should exercise power to censor private expression, whether spoken or published. That is obviously too dangerous to private liberty.

Methods to avoid that hazard were long practiced successfully in this nation, by distributing authority to make normative decisions about free expression among a broad and diverse array of rival and competing private institutions. Those included academic institutions, professional societies, commercial alliances, and private publishers, among others.

A baleful tendency of our present politics has been to attack all of those private normative sources alike as illegitimate, "elites." That style of advocacy—abetted by heedless 1A ideologues who demand disregard of experience—has proved more dangerous to private liberty in this nation than any instance of government speech control ever actually realized during the nation's history.

Look around. The nation's public life is in chaos. Competing ideologues all clamor for government speech control as the remedy, while jockeying to use government to suppress each other. That's where you end up when you demand disregard of experience, and then combine blinkered ideological advocacy with benighted attacks on notional "elite," enemies.

[Brett Bellmore]

" Money in politics doesn’t matter as much as was once assumed."

Seriously, the reason it was "assumed" is that the incumbents needed an excuse to cut challengers off at the knees, by making sure they wouldn't be able to raise the minimum needed to have a chance. The incumbents have other resources besides money, such as the media being guaranteed to cover them.

Most of campaign 'reform' was actually directed at protecting incumbent office holders and parties against challengers. It's why the third party movement never went anywhere, and reelection rates keep going up.

[Commenter_XY]

There is a very simple, and succinct answer to: Money in politics doesn’t matter as much as was once assumed.

Money talks, bullshit walks.

In the end, it is always about the money. And what money purchases. All the rest is just commentary. 😉

[Brett Bellmore]

All the actual research says that there’s a minimum threshold of spending to get your message out, and your name recognized, and once you cross that threshold, additional money doesn’t mean squat. Campaign spending can buy name recognition, but it can’t buy votes.

Campaign finance 'reform' laws aimed at keeping challengers below that threshold, so that they'd be doomed from the start.

[Sarcastr0]

The key is not election outcomes, it's that politicians end up beholden to their moneybags folks. They might be wrong about how much it matters (and I agree the data does seem to surprisingly show that, at least for national office), but that in no way means money doesn't have an outside influence in our politics.

[Brett Bellmore]

And if you were talking just about money directly given to candidates, you could have something like a point.

But once they tried applying it to independent expenditures, (As in Citizens United.) that point evaporated. At that point they were just regulating political speech.

Doesn't matter for 1st amendment purposes that the candidate would appreciate that speech, or even value it highly. It's still somebody's speech.

[Sarcastr0]

If it is money requested by the candidates, that’s all that matters to set up that incentive issue.

Do you know how much time Congresspeople spend literally phone banking, and how much more time they spend meeting with donors?

Money absolutely implicates speech - the 1A cannot be blind to speech.
But money is not speech. It does not act like speech, it acts like something quite a bit more entangling.

[Brett Bellmore]

Nobody says money is speech, except people who want to regulate speech. Money is no more speech than ink and paper are the press, but try publishing if you're forbidden to use paper and ink.

[CocoN8]

You have a right to keep and bare arms, but you’re just not allowed to spend money on gun purchases.

You have a right to an attorney to represent you in a criminal trial, but you’re just not allowed to spend money to retain that attorney.

You have a right to interstate travel, you’re just not allowed to spend money on plane tickets.

You have a right to say whatever you want, you’re just not allowed to spend money to publicize that message.

Extending that reasoning to other rights yields some seriously weird results.

[Sarcastr0]

So I guess neither of you read my 'Money absolutely implicates speech – the 1A cannot be blind to speech' part of my comment.

[Brett Bellmore]

We're responding to the part where, despite that implication, you seem to be making all sorts of excuses for regulating the speech via the money anyway.

[Sarcastr0]

Regulating money donated to campaigns is not the same as regulating speech made via money.

[Randal]

As Trump has shown, money donated to candidates and PACs isn't only used for campaigning. So even if the money flowing to candidates doesn't help them much with voters beyond name recognition, it helps in other ways.

[Blackstone]

"Money in politics doesn’t matter as much as was once assumed." That then quickly becomes (Money)"...is a non-issue." Seems a little sketchy to me. If you're not using yours, I'll be glad to take it.

[Brett Bellmore]

It's not a non-issue, but given the relative importance of freedom of speech, and the mind blowing conflict of interest in incumbent politicians regulating money spent on trying to oust them from office, it's not enough of an issue to take the risk.

[Sarcastr0]

given the relative importance of freedom of speech

This is hand-waiving. When rights come into conflict, you need to do a factual analysis of what's going on, not just declare your side is a victor.

the mind blowing conflict of interest in incumbent politicians regulating money
We are talking about what would be good policy - going after the legislators who would vote for or against the policy is off topic.
But you know what money in politics helps? Incumbents. They are a much better investment. They tend to outraise challengers. Unless of course the challenger is well-heeled already.

I'm not saying it's an easy problem, without considerations of rights and perverse incentives and whatnot, but the blanket case for hands off regulating $$ in politics is pretty weak, both logically and popularly.

[David Welker]

Sarcastr0:

I personally cannot believe how much the left has changed. Emphasizing the importance of freedom of speech is now hand-waiving???

You people have lost your minds and the basic values you once held.

And it is gross.

[Kazinski]

We’ve also got the concept that government has its own free speech rights. Ironically EV’s post just below this one discusses a school favoring its own speech and not allowing equal time to disfavored speech:

“Believing the posters carried political messages, some parents and students objected to [a Minnesota school board’s] hanging “Black Lives Matter” posters without also displaying posters offering various other viewpoints.”

So a school can make black lives matter part of it’s official curriculum, it probably can’t ban students contrary speech like “all lives matter”, but the official speech clearly limits teaching of contrary messages.

Florida’s laws follow the same principle.

[Brett Bellmore]

The drive to eradicate private discrimination is obviously destructive of actual constitutional civil liberties. That's been evident since the 1960's, it's one of the reasons Goldwater refused to vote for the 1965 Civil Rights act.

[Alpheus W Drinkwater]

It is also obvious that the "private discrimination" that was occurring was "destructive of actual constitutional civil liberties." Just not yours or Senator Goldwater's.

[Brett Bellmore]

Perhaps it would help if you'd explain which actual constitutional liberties you think it was destructive of, and how.

I'll readily grant that private discrimination in who you commit crimes like assault against can seriously impact actual constitutional liberties, but assault isn't an exercise of your own liberties, so it's not what we're discussing here.

The personal liberties that the drive to compel non-discrimination have impacted are basic things like freedom of speech, freedom of association, the various economic liberties that the Court decided to memory hole after it stopped liking economic liberty.

[Sarcastr0]

I know you don't think de facto discrimination was a big thing, but it was, and it made for some very unfree conditions.

You may think that SDP and 14A section 5 don't do what the Court says they do, but at least for now your 'weep for the white store owner' pinched purely economic view of our civil liberties is legally out to lunch.

[Brett Bellmore]

I think private discrimination was a big thing. I also think individual liberty IS a big thing. Can't have your cake and eat it, too, you've got to pick which one you value more. I value liberty more than non-discrimination. That's why they call us 'libertarians', not 'equitarians'.

You might prefer a society where people are mandated to do the right thing, I don't.

And, you know what? I'm perfectly capable of thinking my view of the meaning of an amendment is correct, while retaining an awareness that it has a negligible chance of actually being adopted by the judiciary.

That's a vital skill for all true extremists. 😉

Look, if the authors of the 14th amendment had actually thought that the 14th amendment should reach private conduct, they could have written it that way. Instead they wrote, "No state", "nor shall any state". Your average business proprietor isn't a "state".

As Bernstein rightly expected, the drive to create a non-existent 'right' to be free of private discrimination has led to rights that actually ARE guaranteed by the Constitution being infringed. It was predictable, and it happened, and the process is still ongoing. It's yet to be seen how much of our individual liberties we'll still retain by the time it has fully played out.

[Sarcastr0]

you’ve got to pick which one you value more *and when*. That's the key - both rights can coexist and then when then come into conflict you need a way to deconflict. It is indeed the view of an extremist to say your preferred right must always give way or else it's tyranny. That's a great way to lose arguments; most people realize that reality is complicated, and the law must be as well.

if the authors of the 14th amendment had actually thought that the 14th amendment should reach private conduct, they could have written it that way.
They did - hence Section 5. And the background legal environment included that the federal government was already reaching plenty of private conduct with it's legislation.

As Bernstein rightly expected, the drive to create a non-existent ‘right’ to be free of private discrimination has led to rights that actually ARE guaranteed by the Constitution being infringed.
We had this debate. Goldwater lost. And a good thing for America - Civil rights are a real thing, and they can apply to private businesses and individuals. A glance at the South today and back in the day shows all races are more free for it.

[Brett Bellmore]

"They did – hence Section 5."

Bullshit. If an amendment says "State", then enabling legislation has to be directed against "states".

And, in fact, the 1965 Civil rights act was NOT enacted as 14th amendment enabling legislation. It was enacted on the basis of the commerce power. And you know what I think of Wickard, too.

[Sarcastr0]

You talked about the 14th’s scope, and now you complain about the commerce clause. Seems like you can’t top losing.

[Stephen Lathrop]

While I can't take personal credit for this holding, I'm pleased to say that the position I took twenty years ago, which struck book editors as so radical as to be "aggressively hostile … to standard social mores," is now the law of the land.

There's nothing like opening the door wide to bigotry to make an ideological idealist's chest swell with pride.

[David Welker]

Lathrop:

Bigotry might be defined as follows: "obstinate or unreasonable attachment to a belief, opinion, or faction, in particular prejudice against a person or people on the basis of their membership of a particular group"

The belief that there is some group "the enlightened" who have the right ideas and thus should censor some other group, namely "the bigots" is itself actually a form of bigotry.

It is unreasonable to presume that your one groups ideas are better if the only reason they are dominating is because you censor all opposing ideas. One can only be confident in their ideas if they have been tested by being debated and criticized.

The idea that censorship could ever be a foundation for equality is not only incorrect, but unreasonable. Censorship, outside the context of protecting particular private conversations or forums, is an act of dominance and aggression based on a belief in one's own moral superiority.

It should be further noted that we move from labeling ideas as "bigotry" to labeling people as "bigots" as if a person IS the same as whatever idea they happen to have or think.

But people should not be conceived of as being the same as whatever ideas they happen to believe at a particular point in time. People's ideas change over time, especially if they are taught to engage in critical thinking.

Overall, the problem of labeling people and putting them in a box is obvious here. The problem of not allowing people to fully and critically explore their thought processes is equally evident.

Ironically and unfortunately, those engaged in censorship are guilty of perpetuating the very inequality they claim to wish to fight.

[Krayt]

The belief that there is some group “the enlightened” who have the right ideas and thus should censor some other group, namely “the bigots” is itself actually a form of bigotry

I don't even bother with this argument. Flat-out, accusing some group of some evil, and getting large numbers to outrage over it, is just what dictators want.

Gift of gab, and ability to lie convincingly, are their strong points, the one superpower that actually exists.

Allowing any such reason, then assuming Democracy with a capital D, as in We the People, can wield it safely, is shown as historically pig ignorant wishful thinking.

I recall the Egyptian military declaring CNN dishes illegal because "the people cannot see this stuff out of context."

Slippery slope? In this context, that's all human history is. History offers no solace suc is safe.

Declaring speech offensive, and therefore the powerful can shut it down, to cheers of the masses, hasn't worked out so well historically.

I'm still waiting for the argument, "See the brain scan? Damage! And therefore we can censor that speech!"

Hitler, Jr., leaned back, drooling. The useful idiots were again in play. To hell with old school religion or national socialism. There's a neww game in town.

"It's not really so different from then. Large numbers of people were certain, so god damned certain, of their rectitude they felt justified in their actions. Of their leader. Dear leader.

[shawn_dude]

This is just a rehash of the Tolerance Paradox.

[David Bernstein]

You are the mirror image of, say, Pat Buchanan 30 years ago (when the ACLU was still a civil libertarian organization), calling in the criminals' lobby. Being the Pat Buchana of the left is not a compliment.

[David Bernstein]

You are the mirror image of, say, Pat Buchanan 30 years ago (when the ACLU was still a civil libertarian organization), calling in the criminals' lobby. Being the Pat Buchanan of the left is not a compliment.

[Kazinski]

You should have know You Can't Say That.

[DIsrobing]

"While I can't take personal credit for this holding"

lol

[Kazinski]

Laugh at people who actually do claim credit for supreme court rulings, where they haven't been cited by the majority.

And I might just hold my fire at someone that was just cited 4 times in a much bigger case, Students for Fair Admissions v Harvard.

You might have heard of that one.

[Brett Bellmore]

Yeah, he gets a lot of grief here, (Admittedly at least a little of it merited... Geeze, that haircut.) but he's actually got a valid claim to being a major player in the legal theory world.

[Kazinski]

You're confusing Bernstein with Blackman.

Bernstein's haircut is well within the 4 corners of conventional coiffure.

However both are professors, and professors have never been bound by convention in hair style, or even in attempting to give style any attention whatsoever.

[Randal]

This Supreme Court is also aggressively hostile to standard social mores. There's nothing surprising or interesting here.

[David Welker]

Aggressively hostile to standard social mores?

Please feel free to elaborate.

[Kazinski]

They don't think Randal's social mores are the law of the land.

[Randal]

American society had been making excellent strides in applying laws evenly. Now, thanks to this aggressively hostile Supreme Court, we're seeing the return of special rights for conservative Christians. The law increasingly doesn't apply to them.

[Michael P]

That's some real majestic equality, there.

[Kazinski]

Don't blame the Supreme Court.

Scalia in Employment Division v Smith said there is no religious exemption to generally applicable law.

Congress in its wisdom passed the Religious Freedom Restoration Act chastising the court for not being more solicitous towards religion:
"Critics of the decision charged that the Court had effectively overturned a century of case law, including decisions in Wisconsin v. Yoder (1972) and Sherbert v. Verner (1963), which held that courts should use strict scrutiny to examine laws that restrict the religious acts of individuals.

RFRA said courts have to use strict scrutiny when examining laws relating to religious freedom Congress responded with the RFRA to mandate that the courts use strict scrutiny when examining laws that substantially affect religious freedom.

https://www.mtsu.edu/first-amendment/article/1092/religious-freedom-restoration-act-of-1993

[Sarcastr0]

https://en.wikipedia.org/wiki/City_of_Boerne_v._Flores

[Kazinski]

Sure, and while Boerne seems good law to particularly when applied to state jurisdictions like zoning, it seems a lot less apt when applying it to freedom of expression.

There was absolutely no speech involved in Boerne, but Smith which the RFRA act legislatively reversed was a first amendment case dealing with private religious rites that was constrained by the states.

I would hope the court would rule the same way today if a Rastafarian church wanted to open an all ages Ganja Bar in Lubbock, and they were denied a permit.

That certainly doesn’t mean that Kennedy, which was pure (silent) speech was wrongly decided.

If Kennedy had gathered all of his players around him after the game and verbally and briefly said “you should take time to thank your parents and teachers and especially the school administrators for making this game possible today” was there any grounds for disciplining or suspending him?

No.

In fact you’d claim it would be perfectly ok if he told his team “This would be a good time for all of you to reflect on your toxic masculinity, and reconsider your gender identity.”

And I'd have to agree as to 16-18 year olds.

But silently praying to Jesus would clearly be out of bounds.

[Heedless]

Allow me to elaborate on his behalf:

"Whaaaaaaaaaaaah!"

Let me say also:

"Gimmegimmegimmegimme!"

And in conclusion:

"Whaaaaaaaaaah!"

[Levin]

Within the past two years, I have spoken to three different lawyer friends, each of about my seasoning (30+ years as a lawyer) and found that each emphatically believed that “hate speech equals violence” and should be punished by the government.

In one instance, when I tried to suggest that “hate speech” should be met by disagreement or social shunning (depending on the circumstances) rather than by government fines etc., I was shouted at and then shunned by that (now-former) friend.

These three were people who went to law school a generation or so ago. I can only speculate what the majority of recent law grads believes.

Oh wait, The Volokh Conspiracy helpfully covers this topic; Hooray!

Unfortunately, what I have learned is that there seems little hope for progress on free expression in our society.

[Ed Grinberg]

I can only speculate what the majority of recent law grads believes.

Probably something along these lines:
https://metro.co.uk/2020/07/02/harvard-graduate-sobs-fired-dream-job-threatening-stab-lives-matter-supporters-12934921/
(No, this isn't a law-school graduate, but I'm not at all sure their attitude is any different.)

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Striving to preserve safe spaces for America's vestigial bigots since . . . well, since the racists, gay-bashers, Islamophobes, white nationalists, antisemites, misogynists, immigrant-haters, Asian-haters, and others bigots began to lose at the marketplace of ideas and in the modern American culture war.

[David Welker]

Kirkland:

Here you go again. More substance free nonsense.

[Rev. Arthur L. Kirkland]

Plenty of commenters have noticed the Volokh Conspiracy's longstanding campaign to make America safe again for bigots of various right-wing stripes.

This white, male, conservative blog has demonstrated an affinity for insurrectionists and un-American jerks lately, too.

[David Welker]

“Plenty of commenters”

Look, you might have multiple personalities, but I still think you should be counted only once.

Also, if I am understanding you correctly, you want this blog to be an “unsafe space” for people who you have decided “are” bigots.

Is this because you have given up on persuasion??? Are these people like possessed by the devil? Are they evil?

“white, male, conservative”

Watch out Kirkland, you seem to be borderline when it comes to bigotry yourself. Please review the definition.

“Insurrectionists”

However wrong people were (and they were wrong) the majority of the Jab 6 protesters who trespassed at the Capitol had a sincere belief that the election was stolen from Trump.

They are therefore NOT insurrectionists.

Insurrection is not something a person becomes by accident or merely because they misunderstand the facts.

In general, you seem to want people to accept assertions that you make without adequately supporting them.

That is why you are like a broken record. What is so obvious to you isn’t obvious or even persuasive to others and should not be so obvious to you if you thought about it.

Do better.

[Randal]

The majority of the Jab 6 protesters who trespassed at the Capitol had a sincere belief that the election was stolen from Trump.

They are therefore NOT insurrectionists.

How does that follow? It might give them an insanity defense, but trying to violently overthrow the government is trying to violently overthrow the government... even and especially if the insurrectionists think that the government is illegitimate. Who tries to violently overthrow a government they think is legitimate? By your standard, insurrections are impossible.

Is this because you have given up on persuasion???

What a strange question! I for one haven't given up on persuasion, yet I'm nonetheless dismayed to see the proprietors of this blog cater to bigotry. I have been and will continue trying to persuade them to stop doing that. My takeaway is that Rev is doing the same thing.

[Brett Bellmore]

The most obvious rebuttal is that they didn't, in fact, try to violently overthrow the government. The riot on January 6th wasn't particularly attractive, but it didn't look anything like what an actual attempt to violently overthrow the government would look like. It was no more an attempt to overthrow the government than any of the various break-ins to legislative chambers that the Democrats have been responsible for over the last decade.

You can try to paper over the fact that they, for instance, left their guns behind, as just 'incompetently' trying to overthrow the government, but it's still bullshit.

[Sarcastr0]

They were violent. And their goal was to halt the peaceful transfer of power that is the lynchpin of our republic.

The fact that you think guns are the only way to be violent is an amazing example of how you selectively forget stuff. There are plenty of violent videos.

Coulda been more lethal is not really much of a defense.

[Brett Bellmore]

Some of them were violent, that's true. It hardly sets them apart from your average rioter, violence is baked into the concept of "riot".

But for the rest of it? Mostly they were just trying to get some claims about election fraud/maladministration actually examined on the merits, instead of dismissed out of hand. They weren't people who thought Trump had genuinely lost, and wanted him anointed President anyway. They thought he'd actually won.

Maybe they were wrong about that. But trying to get the guy you think actually won a last shot at having his complaints heard isn't the same as trying to overthrow a government.

[Randal]

But trying to get the guy you think actually won a last shot at having his complaints heard isn’t the same as trying to overthrow a government.

You're right that they're not necessarily the same. But in this case they are.

[Brett Bellmore]

If you think the guy you're trying to put in office actually won, and you're trying to put him in office by getting a court hearing of your claim that he actually won, you lack mens rea for trying to overthrow the government.

And that's setting aside that they would have done things radically differently if they'd actually been trying to overthrow anything.

[Randal]

If you think the guy you’re trying to put in office actually won, and you’re trying to put him in office by getting a court hearing of your claim that he actually won, you lack mens rea for trying to overthrow the government.

Not when your intentionally chosen method of getting a court hearing is by violently overthrowing the government!

You're making a vanilla ends-justify-the-means argument. The ends very very rarely justify the means when it comes to criminal justice.

(And we weren't talking about criminal justice anyway, but since you introduced mens rea, we can go there if that's where you want to go today.)

[Brett Bellmore]

Well, no, obviously if your starting premise is that they're guilty, you're eventually going to conclude that they're guilty. That does sort of logically follow, I must admit.

[Randal]

My starting premise isn't that they're guilty. But their reason for attempting to violently overthrow the government isn't relevant to mens rea. In fact, if anything, an articulable reason for doing a crime goes to both motive and mens rea. You can feel very justified in murdering your wife, but you still intentionally murdered your wife in the first degree.

[Purple Martin]

No Brett, no, not the starting premise, but the ending conclusion is that such seditionists are guilty, having been found so in a court of law.

[Brett Bellmore]

Here's one of his starting premises:

"Not when your intentionally chosen method of getting a court hearing is by violently overthrowing the government!"

He could have said, "Not when your intentionally chosen method of getting a court hearing is an excessively boisterous protest that crossed the line into a riot."

But he didn't. He picked their being guilty as a starting point of his analysis.

[Randal]

I see you've given up on any real arguments.

A hypothetical predicate is not a premise. I'm arguing against your logic. If you want to argue definitions, we can do that. Or we can argue facts. But no more attempts at evasion by slippery rhetoric, if you please.

[Sarcastr0]

trying to get the guy you think actually won a last shot at having his complaints heard
Their goal was explicitly to stop the count of an election that had already happened. With violence.

That is not just a riot, it is an insurrection.

[Michael Ejercito]

Not by any normal definition of the word.

[Randal]

That's literally the precise definition.

[Brett Bellmore]

So, how many of them were charged with "insurrection", then?

[Sarcastr0]

We're not talking formal chargeable elements of a criminal charge, Brett.
You know that; quit throwing chaff in the air. Makes you look insincere.

[Kazinski]

If you aren't talking about the formal charitable elements then quit using that word.

Its like calling a guy a rapist for kissing with a little tongue on a first date.

[Randal]

Oh, terrorist-boy. We call people rapists when they've raped (not kissed) someone, even if they don't meet the formal chargeable elements.

[Gandydancer]

Peaceful acquisition of stolen power is NOT " the lynchpin of our republic", and the Jan 6 protesters were in fact not attempting that anyway. Otherwise they would have brought guns.

[Randal]

They did bring guns.

[Brett Bellmore]

They left them in Virginia.

[Randal]

No, they had guns with them in the Capitol. It is known.

[Kazinski]

Its known?

You have any charging documents?

Pictures?

Videos?

I mean other than federal agents how many people were proven to be armed at the Capitol grounds that day?

[Randal]

Oh man terrorist-boy, just look at some sources outside your bubble for once and you'll be informed.

Here's one. There are more. There have been convictions.

https://www.cnn.com/2021/07/20/politics/dea-agent-charged-capitol-insurrection/index.html

[Sarcastr0]

You can be delusional and still an insurrectionist, Gandy.

[Rev. Arthur L. Kirkland]

They go together like racism and xenophobia.

Or gay-bashing and superstition.

[David Welker]

Yes, but if you believe your actions will result in the correct person gaining power, that isn’t insurrection.

Obviously. Like end of discussion.

You aren’t an insurrectionist by mistake. There is no such thing as insurrection through negligence.

[Randal]

You've been blinded by the cult, Welker. All insurrectionists believe that they're attempting to replace an illegitimate government / leader with a "correct" one.

The defining characteristics of an insurrection are a 1. violent 2. group 3. attempting to overthrow the government. Jan 6 meets all those criteria. Even if Trump had in fact won the election, it would still be an insurrection to try to install him via a violent uprising rather than through the courts or other legal means.

[Scooter]

Typical performance from an NPC.

No original comment, just canned responses to stimuli.

"Oh, look. A cave."

[Kleppe]

The Asian-haters lost at the Supreme Court last term, and their argument was not presented by anyone who contributes at this blog.

[MaverickNH]

"While I can't take personal credit for this holding, I'm pleased to say that the position I took twenty years ago, which struck book editors as so radical as to be "aggressively hostile … to standard social mores," is now the law of the land."

In 20 years, what was Radical has nudged up the Overton Window, to at least Acceptable.

[Ed Grinberg]

Cato tried very hard to place the book with a publisher, but constantly ran into ideological opposition. ... Indeed, one publisher even suggested that the book's relatively tame libertarian theme was "aggressively hostile … to standard social mores."

This is pretty much the problem Ayn Rand had, trying to get The Fountainhead published. (Though, in her case, the book was anything but "tame.")

[JasonT20]

I wonder if those that fight against the application of anti-discrimination laws in the name of individual liberty even remember why those laws exist.

I can seem easy to defend the bakers and the web site designers when they want to discriminate against same sex couples that do have other options. Will those who would do so defend businesses that want to discriminate against African Americans, Jews, Asian Americans or others that have historically been the targets of systemic discrimination in the U.S.? The Free Speech and Free Exercise arguments used in 303 Creative and Masterpiece Cakeshop should apply in those situations as well. People in the past sometimes did use religious arguments that races should not mix as an excuse for their actions, for instance. In the present, people that would be that openly racist are few enough that targeted minority groups would still have plenty of other options.

Anti-discrimination laws for businesses that are public accommodations exist because when enough businesses refuse to serve a particular group, that group becomes shut out of society. They no longer have an equal right to engage in commerce, participate in civil life and expression, use transportation, obtain housing and everything else that makes one's life satisfying. That is often the point of such discrimination, regardless of what excuses the people with power use to justify it.

And make no mistake, business owners have power. The libertarian ideal that everyone engages in economic transactions equally is fantasy. Consumers and workers are not on an equal level with owners when it comes to setting prices, wages, availability of products, and so on. When minorities were discriminated against systematically, there was little they could do about it on their own. It took government stepping in to enforce their equal rights to access the economy to do that.

The question to me becomes, why should a little bit of discrimination be acceptable when systematic discrimination is a such a large violation of civil liberties?

[Brett Bellmore]

Sure, I know why they exist. I've previously admitted that the picture of some family driving across country, their car breaks down in some town that's a wide spot in the road, and they end up sleeping under a bridge and having to hike out because the one local hotel won't house them, the one local garage won't fix their car, tugs at the heart strings. And if public accommodation laws had been restricted to vital necessities which were local monopolies, there would be less controversy about them!

They weren't so restricted, just as people originally feared.

[Rev. Arthur L. Kirkland]

tugs at the heart strings

???

[JasonT20]

They weren’t so restricted, just as people originally feared.

Which people feared that anti-discrimination laws wouldn't be restricted to "vital necessities"? I mean, given that things that were very clearly vital necessities to living an equal life were segregated by law in the South and in soft ways in many other parts of the country, there were plenty of people that didn't even want to concede that much.

[David Nieporent]

Will those who would do so defend businesses that want to discriminate against African Americans, Jews, Asian Americans or others that have historically been the targets of systemic discrimination in the U.S.? The Free Speech and Free Exercise arguments used in 303 Creative and Masterpiece Cakeshop should apply in those situations as well.

They do. (Of course, the free exercise arguments did not prevail in either case. SCOTUS took 303 Creative only as a free speech case; in Masterpiece Cakeshop they punted on the substantive issue.)

And make no mistake, business owners have power. The libertarian ideal that everyone engages in economic transactions equally is fantasy. Consumers and workers are not on an equal level with owners when it comes to setting prices, wages, availability of products, and so on.

Consumers have a lot more power than Jack Phillips or Lori Smith.

[Randal]

Oh, you'd gone so long without saying something dumb.

Consumers have a lot more power than Jack Phillips or Lori Smith.

It's stupid to compare the power of all consumers with that of individual business owners.

The problem, as you obviously know, is that business owners have more power than small minority groups of consumers.

If it becomes fashionable for businesses to refuse service to gays, then at some point it significantly impacts gays and makes them second-class citizens.

[Michael Ejercito]

Against whom was Lori Smith discriminating?

[Randal]

That's an excellent question I've been meaning to ask Gorsuch myself, actually!

[shawn_dude]

"If it becomes fashionable [again] for businesses to refuse service to gays..." FTFY

[Gandydancer]

"Will those who would do so defend businesses that want to discriminate against African Americans, Jews, Asian Americans or others that have historically been the targets of systemic discrimination in the U.S.?"

Absolutely. At least in my case.

"Anti-discrimination laws for businesses that are public accommodations exist because when enough businesses refuse to serve a particular group, that group becomes shut out of society."

No one is going to be shut out from buying cakes or website designs.

[JasonT20]

No one is going to be shut out from buying cakes or website designs.

...

My point is that it can be easy to say that when it is cakes or websites at stake and there aren't that many people that would refuse service to people they don't like. Again, my question is how can we allow exceptions and still provide protection when it is more than just cakes and websites and more than a few people here and there that want to discriminate against a minority group?

[David Bernstein]

Neither 303 Creative nor You Can't Say That! defend a general right to discrimination. Rather, the argument is that if there is a conflict between freedom of expression and antidiscrimination laws, the First Amendment wins, as it does routinely when there is a conflict between a statute and freedom of expression. This leaves the vast, vast, majority of antidiscrimination law intact.

[JasonT20]

Rather, the argument is that if there is a conflict between freedom of expression and antidiscrimination laws, the First Amendment wins, as it does routinely when there is a conflict between a statute and freedom of expression.

That sounds reasonable, but it doesn't fit with at least one precedent I can think of, Bob Jones University v. United States,(1983).

In 1970, the IRS ruled that the law that allowed for tax exempt charities (501(c)(3)) only granted such status to organizations that served the public interest and that organizations that discriminated by race did not meet that definition. It sent letters to private institutions with charitable status that discriminated against African Americans, such as Bob Jones. It began admitting black students the following year, but maintained a restriction against interracial dating and marriage. The IRS revoked its tax exempt status in 1976 and they sued. Bob Jones claimed that its free exercise rights and the establishment clauses were being violated by this. They lost, 8-1.

So right there is an example where federal policy, as set through statute and interpreted by an executive agency, won in a conflict with the First Amendment.

[Kazinski]

But in terms of creative professionals they do or should have a right to turn down gigs because either they don't feel the creative juices or they see creative problems.

Say a wedding photographer turns down black weddings, not because he's racist but because he isn't actually that good and he can never get the light right with black faces contrasted with white dresses.

(I'm not a photographer but I was on the beach in San Diego last winter and 4 or 5 guys asked me to take their picture with their surfboards with their phone. After 2 or 3 attempts I had to turn the whole group around to face the sun because the pics all had the black guy completely blacked out. Was I racist? Was it the phone? Or can their be real world considerations that are race based? Or should I have not cared, taken one lousy pic, and moved on? At least I didn't say, damn I just can't take good pics of black guys in the sun, and turned them down, but if I was getting paid maybe I should be honest about it.).

[JasonT20]

But in terms of creative professionals they do or should have a right to turn down gigs because either they don’t feel the creative juices or they see creative problems.

This could be relevant when the creatives are claiming that they are being forced to create things for people after they have told the potential customers that they are not in a creative space to do a decent job. But it is irrelevant when the creatives are saying that they don’t want to create for customers that fall into protected minority groups.

[Martinned]

"Are we the baddies?"

[Gandydancer]

Yes, you are.

[shawn_dude]

LOL. Good call.

[Gandydancer]

I couldn't help but think how ironic it was that book editors, of all people, thought a book was too favorable to freedom of expression.

That's a really dumb take. The letter you quote says nothing about favorability or unfavorability to "freedom of expression". It's idiotic that he thinks the only "standard social mores" are HIS "social mores", but that's a different issue.

[David Bernstein]

There's nothing in the book that says that people *should* discriminate, it doesn't even defend a general right to discrimination, only that antidiscrimination should not be considered exceptions to rights protected by the Constitution, especially freedom of expression. So, yes, he is saying that the book is too favorable to freedom of expression. The book