Pro-Life Amicus Brief in Georgia Adult-Entertainment Case

Two pro-life groups and five law professors urge the Supreme Court to take up Georgia Ass'n of Club Executives v. Georgia.

Yesterday, I blogged about the First Amendment Scholars' brief (filed by Chris Paolella of Reich & Paolella LLP) supporting the cert petition I filed in Georgia Ass'n of Club Executives v. Georgia. (For my blogging about the cert petition itself, see Parts 1 and 2  here, and see also the amicus brief supporting the cert petition filed by the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n. The state's brief is due in a month. See also this news article about the amicus briefs in Bloomberg Law.)

Today, I'll talk about the amicus brief filed by Secular Pro-Life, Progressive Anti-Abortion Uprising, and five law professors (Helen Alvaré of George Mason, Teresa Stanton Collett of University of St. Thomas (MN), George Dent of Case Western, Stephen Gilles of Quinnipiac, and Robert Pushaw of Pepperdine).

Thanks to Kelsey Hazzard of Secular Pro-Life and my Emory Law colleague Tom Arthur for writing and filing this brief. More generally, thanks to the organizations and people involved for recognizing that we're all in this together: pro-life people who oppose Hill v. Colorado should support this cert petition even if they have no interest in (or are even opposed to) adult entertainment, because high-level First Amendment doctrines (like the distinction between content discrimination vs. content neutrality) are rarely hermetically sealed to particular business models! Supporting Reed v. Town of Gilbert and making it extremely hard for the government to discriminate in regulation and taxation pays dividends across the board, whether you support nude dancing or anti-abortion counseling.

Here's the text of the (interesting parts of the) brief:

Interest of Amici Curiae

Secular Pro-Life is a not-for-profit organization whose mission is to advance secular arguments against abortion; create space for atheists, agnostics, and other secularists interested in anti-abortion work; and build interfaith coalitions of people interested in advancing secular arguments. Secular Pro-Life envisions a world in which people of all faith traditions, political philosophies, socioeconomic statuses, sexualities, races, and age groups oppose abortion.

Financial precarity motivates nearly three-quarters of abortions. The pro-life movement offers practical resources to help families overcome financial barriers and choose life for their children—but these resources are only useful to the extent that pregnant mothers know about them before it is too late. Therefore, Secular Pro-Life strongly supports the practice of peaceful sidewalk outreach to prevent abortions. Sidewalk outreach is especially critical for religiously unaffiliated mothers, who are disproportionately at risk for abortion compared to the general population, and who may not otherwise learn about free pregnancy supports that are commonly advertised through faith-based channels.

Secular Pro-Life takes an interest in this case because Hill v. Colorado, 530 U.S. 703 (2000), inhibits life-saving sidewalk outreach and unconstitutionally censors the speech of Secular Pro-Life's members.

Progressive Anti-Abortion Uprising (PAAU) is a single-issue non-profit organization committed to ending elective abortion, focusing on issues that land at the intersection of pregnancy and parenting. Non-violent direct action, including sidewalk advocacy, is at the core of PAAU's mission. Buffer zone laws of the type this Court upheld in Hill v. Colorado are designed to impede peaceful challenges to the oppressive status quo.

The following professors teach and/or research in the area of law and religion and are interested in the development of sound doctrine in this area, as well as the protection of free speech rights in Hill v. Colorado-type contexts. [List of professors and affiliations omitted because I gave their names above.]

Summary of Argument

Hill v. Colorado, 530 U.S. 703 (2000), was egregiously wrong on the day it was decided and remains so today. Relying on a line of cases that began with City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), this Court in Hill treated buffer zone laws as content-neutral time, place, and manner regulations subject to only intermediate First Amendment scrutiny. This Court should instead apply strict scrutiny because buffer zone laws are, in both theory and practice, content-based restrictions on disfavored anti-abortion speech.

"To be sure, this Court has not uttered the phrase 'we overrule Hill.'" Coalition Life v. City of Carbondale, 145 S. Ct. 537, 540 (2025) (Thomas, J., dissenting from denial of certiorari). But "Hill has been seriously undermined, if not completely eroded." Id. at 542.

Although this case does not involve a buffer zone, Petitioner's direct challenge to the mistaken reasoning of City of Renton and its progeny offers this Court an ideal vehicle to, at long last, utter the phrase "we overrule Hill" and restore freedom of speech to pro-life Americans.

Argument

I. Hill v. Colorado Should Be Overruled.

In Hill v. Colorado, 530 U.S. 703 (2000), this Court wrongly upheld a Colorado statute that criminalized "knowingly approach[ing]" within eight feet of a person, without their consent, "for the purpose of . . . engaging in oral protest, education, or counseling" near the entrance of a "health-care facility." Colo. Rev. Stat. § 18-9-122(3). This type of statute is popularly known as a buffer zone law.

As Justice Scalia pointed out in his dissent, buffer zone laws like the one enacted in Colorado are facially content-discriminatory: "Whether a speaker must obtain permission before approaching within eight feet—and whether he will be sent to prison for failing to do so—depends entirely on what he intends to say when he gets there." Hill, 530 U.S. at 742 (Scalia, J., dissenting). Moreover, although the statute defined "health care facility" broadly, it was clear from the legislative history and context that the buffer zone was enacted for the benefit of abortion facilities to discourage protests against them.

The majority nevertheless treated the buffer zone like a content-neutral regulation, opining that "the statute applies equally to used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries." Id. at 723 (majority opinion). That reasoning is pretextual to the point of undermining confidence in the Court. "[I]t blinks reality to regard [Colorado's] statute, in its application to oral communications, as anything other than a content-based restriction upon speech in the public forum." Id. at 748 (Scalia, J., dissenting); see also McCullen v. Coakley, 573 U.S. 464, 501 (2014) (Scalia, J., concurring in judgment) ("It blinks reality to say . . . that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based.").

This Court has since come to appreciate that the criminal prohibition on "oral protest, education, or counseling" at issue in Hill was not content-neutral and in fact discriminated against pro-life speakers. In Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), this Court noted that its prior abortion jurisprudence had "distorted First Amendment doctrines," identifying Hill as the primary example of that First Amendment abortion distortion. Id. at 287 & n.65. Hill is an "erroneous decision" which used a "long-discredited approach" to uphold a "blatantly content-based prohibition" on pro-life speech near abortion facilities. City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 86-87 (2022) (Thomas, J., dissenting); see also Reed v. Town of Gilbert, 576 U.S. 155, 167 (2015) (relying on Hill dissents).

Hill immediately received overwhelming criticism from legal scholars. See, e.g., Jamin B. Raskin & Clark L. LeBlanc, Disfavored Speech About Favored Rights: Hill v. Colorado, the Vanishing Public Forum and the Need for an Objective Speech Discrimination Test, 51 Am. U. L. Rev. 179, 182-83 (2001); Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001); Constitutional Law Symposium, Professor Michael W. McConnell's Response, 28 Pepp. L. Rev. 747, 752 (2001) (quoting Prof. Chemerinsky as being "troubled by the rationale that was given" in Hill); Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places 101 (2008); Ronald J. Krotoszynski, Jr. & Clint A. Carpenter, The Return of Seditious Libel, 55 UCLA L. Rev. 1239, 1262-63 (2008). In the quarter-century since, Hill has only continued its slide into this Court's anti-canon. "Yet, lower courts continue to feel bound by it" and continue to uphold buffer zone laws. Coalition Life, 145 S. Ct. at 538 (Thomas, J., dissenting from denial of certiorari).

With the notable exception of Hill, this Court's First Amendment jurisprudence reflects "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Among the most important of those debates is "if and when prenatal life is entitled to any of the rights enjoyed after birth." Dobbs, 597 U.S. at 263. And nowhere is that deliberation more consequential than in the very place that buffer zone laws aim to censor it.

Therefore, this Court should overrule Hill v. Colorado.

II. The "Secondary Effects Doctrine" Ties This Case to Hill.

At first blush, amici might seem to have little in common with Petitioner—a trade association for adult entertainment clubs in Georgia. But both find themselves in conflict with the same line of cases that undermines their First Amendment rights.

Petitioner presents the following question:

A Georgia statute imposes a tax that, on its face, singles out businesses defined by the content of their expression; the State seeks to justify the tax by the need to address "secondary effects." Is this tax subject to strict scrutiny under the First Amendment because it is facially content-discriminatory, as recently affirmed by Reed v. Town of Gilbert, 576 U.S. 155 (2015), or does a content-neutral rationale make the tax subject to intermediate scrutiny under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)?

Cert. Pet. at i. City of Renton concerned "a constitutional challenge to a zoning ordinance . . . that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school." City of Renton, 475 U.S. at 43. This Court acknowledged that "the ordinance treats theaters that specialize in adult films differently from other kinds of theaters." Id. at 47. And content-based restraints on speech are normally subject to strict scrutiny. See id. at 46-47 (citing Carey v. Brown, 447 U.S. 455, 462-63 & n.7 (1980); Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95, 98-99 (1972)). "Nevertheless, . . . the Renton ordinance is aimed not at the content of the films shown at 'adult motion picture theatres,' but rather at the secondary effects of such theaters on the surrounding community." Id. at 47.

This Court further developed this idea in Ward v. Rock Against Racism, 491 U.S. 781 (1989) (upholding regulation of sound amplification in a bandshell), opining that "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. at 791 (citing City of Renton, 475 U.S. at 47-48). The "incidental" impact on speech was outweighed by the governmental interests in addressing secondary effects, namely, "avoid[ing] undue intrusion into residential areas and other areas of the park" and "ensur[ing] the quality of sound at Bandshell events." Id. at 791-92.

The sound amplification ordinance at issue in Ward is readily distinguishable from content-based buffer zone laws. Nevertheless, Colorado relied upon Ward to justify its pretextual censorship of pro-life speech. "All four of the state court opinions upholding the validity of [the Colorado buffer zone law] concluded that it is a content-neutral time, place, and manner regulation. Moreover, they all found support for their analysis in Ward v. Rock Against Racism." Hill, 530 U.S. at 719. Supporters of the buffer zone cited a secondary-effects interest in "unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests." Id. at 715. The Hill majority analogized those rationales to the "interest in preserving tranquility" that had led this Court to apply less than strict scrutiny in Ward. Id. at 716.

And so, adult entertainers and right-to-life advocates find themselves sharing the same doctrinal bed. This Court's use of intermediate scrutiny in City of Renton and Hill "'is incompatible with current First Amendment doctrine as explained in Reed.'" Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (opinion of Thomas, J.) (quoting Price v. Chicago, 915 F.3d 1107, 1117 (7th Cir. 2019)). As Justice Thomas has written, "the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents." Id.

This is that case. The question presented here has significant implications for the free exchange of ideas concerning abortion and the right to life. Both Petitioner and amici deserve the same First Amendment guarantees enjoyed by uncontroversial speakers. This Court should restore consistency to First Amendment jurisprudence by overturning the City of Renton/Hill line of cases in favor of Reed's strict scrutiny approach. [Footnote: Alternatively, as Petitioner suggests, the Court could substantially reform its First Amendment jurisprudence by limiting City of Renton's application to zoning matters. Cert. Pet. at 6-7, 32. This approach would also have the effect of overruling Hill.]

III. This Case Provides an Ideal Vehicle to Overrule Hill.

"This Court has received a number of invitations to make clear that Hill lacks continuing force. Some of those invitations have arisen in cases with thorny preliminary issues or other obstacles to our review." Coalition Life, 145 S. Ct. at 541 (Thomas, J., dissenting from denial of certiorari) (citing Bruni, 141 S. Ct. at 578 (opinion of Thomas, J.)). The buffer zone challenged in Bruni v. Pittsburgh, for instance, involved "unclear, preliminary questions about the proper interpretation of state law." Bruni, 141 S. Ct. at 578.

But unlike in Bruni and other recent buffer zone cases, there are no side issues in this case that would preclude this Court's effective review. The First Amendment question has been fully litigated, and the Georgia Supreme Court expressly relied on City of Renton in its analysis. Ga. Ass'n of Club Executives, Inc. v. State, 908 S.E.2d 551, 561 (Ga. 2024); Cert. Pet. at 15a. City of Renton and its intermediate scrutiny progeny, including Hill, are ripe for review.

Conclusion

This Court should grant the petition for a writ of certiorari.

Comments

[Bob from Ohio]

Bootleggers and Baptists!

[Mark N.]

The "ideal vehicle" part of the brief is interesting. It does look like a good vehicle for the Court to revisit City of Renton. But do they want to? Or would they prefer to overturn just Hill without reaching further back to City of Renton? This case is less ideal for the second possibility, since the lower court decision explicitly relies on City of Renton.

[apedad]

" . . . it was clear from the legislative history and context that the buffer zone was enacted for the benefit of abortion facilities to discourage protests against them."

It did no such thing.

It prevents people from blocking entrances but protests can, and do (and should!), still happen.

[Bob from Ohio]

"It prevents people from blocking entrances"

Colorado has a buffer zone, it does not merely prevent "blocking". You are thinking of the federal FACE Act.

[apedad]

The CO law also discusses blocking entrances (which Prof. Volokh conveniently omitted since he's concentrating the speech portion).

"The general assembly therefore declares that it is appropriate to enact legislation that prohibits a person from knowingly obstructing another person’s entry to or exit from a health-care facility.

(2)A person commits a petty offense if such person knowingly obstructs, detains, hinders, impedes, or blocks another person’s entry to or exit from a health-care facility."

https://colorado.public.law/statutes/crs_18-9-122#:~:text=For%20the%20purposes%20of%20this%20section%2C%20%E2%80%9Chealth-care%20facility%E2%80%9D,law%20to%20administer%20medical%20treatment%20in%20this%20state

But I had to look that up so thanks for pointing it out.

[Soronel Haetir]

I would say the buffer zone is fine no matter the topic. You have the right to speak, not the right to any kind of audience.

[Area Man]

I’m a non-religious pro-lifer. I didn’t know such organizations existed. Good to see.

[Lee Moore]

Progressive Anti-Abortion Uprising (PAAU) is a single-issue non-profit organization committed to ending elective abortion, focusing on issues that land at the intersection of pregnancy and parenting.

https://paaunow.org/

Equality, Trans-Rights, Black Lives Matter, Nuclear Disarmament and Justice all apparently fall within the single issue of ending elective abortion.

I wonder if their home page might be missing a vital logo :

https://i.pinimg.com/originals/a5/eb/98/a5eb982ab6dd8888b43cf858803509ea.jpg

[not guilty]

There is another nexus between abortion clinic protests and adult entertainment showbars. A number of jurisdictions, in order to ban table dancing or lap dancing, prohibit patrons from coming within a specified distance of a nude or semi-nude dancer during her performance. This operates as a "floating buffer zone" around each entertainer while unclothed.

Because these dance establishments typically play loud music, the distance requirement makes conversation between the dancer and her patron virtually impossible.

[JoeFromtheBronx]

Deaf strip clubs might be most ideal.

[BadLib]

Which brings to mind a question...

Suppose a blind customer in a strip club is unable to enjoy the primary product in a way that non-disabled customers can. Can they demand a reasonable accommodation of "touching the product" so they can have the experience that non-disabled patrons enjoy?

[Sasha Volokh]

No, they're just entitled to audio description.

[ReaderY]

My proposed approach, treating adult entertainment as a sui gensris category subject to intermediate scrutiny, would make the amicus brief irrelevant. “adult entertainment” is a subset of obscenity in its traditional legal sense, which has sexual arousal or gratification as an element.

While proponents of abortion may find pictures of aborted fetuses and other things anti-abortion groups tend to display in protests disgusting and “obscene” in some more general sense, whatever else can be said about them, they definitely do not tend to arouse or produce sexual gratification. This would make this case completely irrelevant to their concerns.

[Reallynotbob]

There's something rather Sharia about this approach isn't there? Just regulate or ban anything that titillates.

Your "sub-obscenity" category defeats itself because "sexual arousal as an element" or "tend[s] to arouse or produce sexual gratification" itself exists only in the eye of the beholder. Does it cover R-rated movies that depict sexy times? Taylor Swift concerts? Shania Twain concerts? Classical sculptures (is that you, John Ashcroft)? The naked mouse in Maus? JC Penny's catalogs? Fragrance ads on bus stops and in the mall? Absolutely everything at a Victoria's Secret?

You'd sacrifice legal clarity and consistency in the name of banning something with which you have a personal moral problem.

[ReaderY]

One can say the same thing about any other debatable question. It’s long been my position that the Supreme Court was right in Atlanta Motel to characterize discrimination laws as a species of morals laws no different from any other morals laws. (For that matter, Calhoun, who thought laws against slavery nothing but busy-bodied moralizing), would probably have relished comparing laws against slavery to the Sharia’s prohibition on alcohol.) They are certainly subject to all the general problems with morals laws, and for that matter laws generally, that you describe above. People have their own opinions on all kinds of issues. What characteristics are an appropriate basis for employment decisions and what are invidious discrimination? What is gender? I think gender has become every bit as hard to define in our current society as obscenity.

If your argument is sound, discrimination laws ahould be struck down because people will debate e.g. what particular individuals’ genders are or what characteristics are and arenmt legitimate for employers to consider every bit as vigorously as they do these laws.

I’ll also point out that objectors to courts making Alien Enemies Act decisions raise exactly the same issues you do. What’s a government? What’s an invasion? What’s an enemy? You can see in the comments in this blog that people disagree every bit as fiercely on these issues as they would on what “obscenity” means.

The way questions are resolved in our society is by legislatures establishing policies and setting boundaries, and courts resolving disputes. This is how vague and debatable propositions become discernable laws. People disagree all the time on all kinds of things. People discuss, legislatures make decisions, they pass statutes reflecting whatever compromise ends up being hammered out. That’s how representative democracy works.

Frankly, what I am proposing is a lot more attentive to your vagueness concerns than the current approach. Legislatures setting potentially detailed standards and courts deciding and applying precedents to address your example questions may result in more conservative obscenity laws, but they would definitely result in clearer direction as to what people can and cannot do than juries applying the Miller standard in every case individually as if no other case had ever existed.

If your concern is really vagueness, you ought to prefer my approach to the current one. If you don’t, then your concern isn’t really vagueness. Why not share your real concern?

As I see it, the reason the constitution permits laws against obscenity is not that obscenity is wrong in any absolute sense, any more than preferring to associate with people who resemble oneself is wrong in any absolute sense. It is both cases, as the Atlanta Motel Court said, simply that the constitution permits legislatures to outlaw it. Courts shouldn’t deal in absolute morality any more in the one case than in the other.

[JasonT20]

It’s long been my position that the Supreme Court was right in Atlanta Motel to characterize discrimination laws as a species of morals laws no different from any other morals laws.

Placing anti-discrimination law into a "morals law" category along with laws restricting sexually "obscene" behavior or material from public view is not a position I can agree with, at all.

At its core, anti-discrimination law is based on two premises: 1) That the individual characteristics being used for the outlawed discrimination have no valid rational connection to the actions at issue. 2) Even private discrimination can affect a person's ability to participate equally in society in realms that the law already regulates.

Government regulates the employer-employee relationship in a lot of ways even without anti-discrimination laws. Couple that with the absolute necessity for someone to be treated equally in employment matters to be able to have equal opportunity in almost everything else, and you have a lot more than "morals" to justify anti-discrimination law. Unless, of course, the claim that people with different skin colors or reproductive organs (or whatever else) are not less than some other people that have political power is just a "moral" claim to you.

[ReaderY]

“No rational connection to the actions at issue” ??? Of course they have a rational connection! People want to associate with people who resemble themselves because doing so makes them happy. Change a few words and you’d be arguing that gay marriage should be outlawed because it is based on “characteristics that have no rational connection to the actions at issue.” People choose kinds of work, workplaces and work partners because they make them happy for the same reason they choose domestic lifestyles, living situations and domestic partners because it makes them happy. Sometimes they’re forced by circumstances to make suboptimal choices. But if they can make the choices that make them happy, they will.

There’s simply nothing irrational about wanting to be happy.

You’d have to be a real puritanical prude to argue that hunan happiness itself is irrational, or the near-equivalent, only the kinds of happiness you personally approve of are rational, and if people seek happiness in ways you don’t understand or approve of, they must be irrational for doing so. Have you by any chance read the Declaration of Independence?

[JasonT20]

You really avoided almost everything I wrote. At least you don't refute the premise of anti-discrimination law being the proposition of everyone being "created equal." How's that for the Declaration of Independence for you?

There's nothing rational about people wanting only to be around people that look like them. Or wanting to hire only men for jobs where a man has no inherent advantages over a woman. Even in jobs where men, on average, have advantages over women, the rational thing to do is to hire the best individual on those specific criteria so that women that are superior in those qualities to the male applicants aren't excluded from consideration.

Simply put, there is nothing rational about valuing a characteristic that has no relevance to any of the qualities that matter in business. That is why we call it bigotry. The definition of that word requires the belief in the inferiority of the target and preference for one's own 'kind' being irrational.

[ReaderY]

Homosexuality is irrational? Against reason? Against the order of nature? No reason in valuing a characteristic that has no relationship to any of the characteristics that matter in a family?

It’s true that MANY people marry to raise a family genetically related to them, just as many people go into business for money. But what about people like Khalil Gibran, who famously wrote “Our work is our love made manifest”? What about the people who are in it for love? Are they simply vocational deviants, queers, perverts, people with irrational, disordered inclinations, not fit to be members of decent society?

For that matter, what business does society have telling people what purposes their “love made manifest” should serve? What business does it have excluding love as a permissable purpose? Who is society, who are you, to say that it’s irrational for people to manifest their love through their work as Khalil Givran said?

[ReaderY]

Remember, you’re dealing with a guy who tries to find reason in almost everybody and starts with the premise that if I think someone completely irrational, I likely don’t understand them enough. I may still disagree with them after understanding them better, but I usually won’t think them completely irrational.

[Lee Moore]

Subjective preferences don't have to be rational. Some people prefer chocolate ice cream to vanilla, some the other way round. Some don't like ice cream at all.

Lots of decisions are arational, or a mixture of arational subjective preference and reason. Hardly any are purely rational, because reason provides no values.

What is offensive about the government second guessing the "rationality" of choices made by private persons is not merely that a court's attempts at rational calculation are inferior to the attempts made by the litigants (though they usually are) but that the court has no business policing anyone's arational choices. That I like chocolate ice cream is a sufficient reason for me choosing it, and it is offensive to require me to justify my choice to some tiresome jack-in-office.

[ReaderY]

Two things here. First, in general I may have a more expansive concept of “rational” than either you or JasonT20. For example, I don’t think wanting to be happy is, in general, irrational.

Second, I will briefly mention what you might have surmised: I happen to think that positions opposing these things are also rational. I’m rational, you’re rational, we’re all rational! Astounding, isn’t it? With a little luck, we could all be doing the time warp again.

[JasonT20]

I consider "rational" thought to be reasoning that flows in a logical manner from whatever premises one starts with. Those premises can be subjective values, obviously.

I am focusing on race and sex discrimination because those are the most obvious forms of discrimination that were being addressed with laws like the Civil Rights Act of 1964 were passed. And those bases for discrimination are the most obviously irrelevant criteria to the situations that anti-discrimination laws were meant to address.

A person owning and operating a business can clearly state some other goal than making a profit for starting and running their business. But it will still need to make a profit in order to stay in business for any length of time. If someone starts a business, but doesn't care whether it makes a profit, then why make it a business in the first place instead of a non-profit? Thus, it is not rational to sabotage the business's ability to make a profit, even if those actions are in pursuit of goals that an only be accomplished if the business makes sufficient profit to remain in business.

I suppose it could still be 'rational' to forgo some profit for a racist to maintain their business as only employing people of the owner's race and only serving customers of the owner's race. But that would only be rational if the premise was itself either entirely subjective or based on some other rational conclusion. Having a strong enough subjective preference for associating only with one's own race to be motivated to discriminate in hiring or serving customers is not irrational (even if I find it disgusting and hateful, myself). But believing that one's race is superior to others by some objective criteria and discriminating because of that belief is not rational if evidence contradicts that proposition of superiority.

But regardless of any of that question over rational vs. irrational motivation, the other part of my point is that discrimination is still harmful to the target of the discrimination, regardless of motivation. And when it is not a very few isolated individuals doing the discrimination, but a significant portion of all business owners/managers and landlords, then all people within the targeted group are significantly harmed in their ability to participate equally in all of society. They can't equally build wealth. They can't equally care for and raise their children to provide them with opportunities.

We saw exactly those harms when the discrimination was pervasive. And the legacy of those harms continues to this day, and the discrimination hasn't even been entirely eliminated. So, I maintain that it is not rational to expect that allowing a small amount of discrimination in order to protect the "right" of prejudiced people to act on their prejudices will not harm the groups targeted by that discrimination. The available evidence would be against that.

[Lee Moore]

That is why I used the term "arational".

To prefer chocolate ice cream to vanilla ice cream is neither rational nor irrational. It does not belong to the world of reason.

As Jason notes, once you have started with some subjective values, then you might use reason to advance to further propositions that are based on those subjective values. But your subjective values aren't themselves the product of reason.

[Lee Moore]

Jason : Having a strong enough subjective preference for associating only with one's own race to be motivated to discriminate in hiring or serving customers is not irrational (even if I find it disgusting and hateful, myself). But believing that one's race is superior to others by some objective criteria and discriminating because of that belief is not rational if evidence contradicts that proposition of superiority.

Indeed. But ....

...if you say you are against employing, say, gay people because you think they present a health risk to you, your other employees and your customers, and the judge concludes that your calculation of health risk is incorrect, what next ?

Perhaps the judge's calculation does not convince you. Perhaps he uses surveys and reports that you find unconvincing. Or perhaps you then conclude, never mind that, I still don't want to employ gay people.

If the judge's conclusion is impeccably and unarguably correct as a matter of factual basis and reasoning (which in reality it never will be because it will always depend on evidence that is disputable) then we simply arrive at a performative contradiction. You say you won't employ gays because you think they're a health risk, but in reality you won't because you just don't like 'em. Which is not irrational, as you accept.

[Lee Moore]

Jason : the other part of my point is that discrimination is still harmful to the target of the discrimination, regardless of motivation

Sure, but so what ? That is in the nature of freedom of association. I don't want to date you because I'm a guy and you're a guy, and I don't find guys sexually attractive. You may be gay and you might find me extraordinarily attractive - hard not to, I accept - and you may get very weepy and resentful that I am just not interested in you.

And probably 95% of the guys you are interested in aren't interested in you. Because they're not gay either.

The price of freedom of association is, from time to time, tough noogies when someone you want to associate with doesn't want to associate with you, or at least in the manner than you would like them to associate wth you. The value of freedom of association is that the government doesn't compel you to associate with people you don't want to associate with, or to take your association to a level you don't want to take it to.

[JasonT20]

Sure, but so what ? That is in the nature of freedom of association. I don't want to date you because I'm a guy and you're a guy, and I don't find guys sexually attractive. You may be gay and you might find me extraordinarily attractive - hard not to, I accept - and you may get very weepy and resentful that I am just not interested in you.

We aren't talking about things like personal social interactions. We are talking about businesses, employment, housing... Discrimination in those contexts is fundamentally different. [I'm not sure why you felt the need to use us in the hypothetical, but whatever.] What is at stake if someone rejects my romantic advances? My disappointment? No one is obligated to extend me anything in order to satisfy my romantic desires.

The elevation of the freedom of association to this degree is not justifiable once you understand how severely discrimination limited the ability of marginalized groups of the past to live their lives with dignity and opportunity. It is a hypothetical freedom you are elevating and arguing that this is more important than countering the very real harm discrimination has caused in the past, and whose legacy is still leading to unequal opportunities now.

These theoretical association freedoms you are talking about are not justification for discrimination by race, sex, religion, national origin, sexual orientation, or other such factors in places of public business, in employment, or housing, and so on, which is where anti-discrimination law in the private sector reaches.

If you really want to argue against anti-discrimination law honestly, then make your hypotheticals fit what it actually does. Argue that someone owning a business should be allowed to refuse to serve black people if he doesn't like black people. Argue that someone should be allowed not to rent or sell a home to a gay couple because they don't like gay people. Argue that someone should be able to refuse to hire a woman for a job that she can do better than the man he wants to hire instead, just because he thinks women should be having and raising kids and not working.

If anti-discrimination law violates freedom of association, then those people have a right to freedom of association and should be able to do exactly those things regardless of the harm it does to black people, gay people, or women as a group when those kinds of bigots have enough power to affect them at scale.

[Lee Moore]

Jason : If anti-discrimination law violates freedom of association, then those people have a right to freedom of association and should be able to do exactly those things regardless of the harm* it does to black people, gay people, or women as a group when those kinds of bigots have enough power to affect them at scale.

What is "if" doing here ? If the government can compel me to associate with you, how can that be anything other than a violation of my freedom of association ?

If you really want to argue for for anti-discrimination law honestly, then just admit that you are against freedom of association. If freedom of association results in things you don't like, you're willing to compel association in order to avoid those things.

But where do you turn when I insist that the cotton harvest must be gathered and I can't find enough volunteer labor to harvest it ? It just becomes a matter of who gets to insist on other people doing their thing under compulsion. Or as the great sage Humpty Dumpty explained :

’The question is, which is to be master — that’s all.”

The idea of liberty is that we are each our own master. And we are constrained only to the extent that we may infringe other people's equal liberty. That, as I mentioned above, is the equality the Founders were interested in.

* "harm" is the canary in the coalmine. As soon as it appears in the discussion, you know that liberty is being thrown out of the window. Obviously if I decide to pick George for a high paying job ahead of Jason, then there is a sense in which my association with George, and my non association with Jason "harms" Jason. But there is nothing irrational or unjust about it. Jason has no right to expect me to hire him. George is not infringing any of Jason's liberty or property rights by being chosen in his stead.

This kind of woulda coulda shoulda "harm" is just weaselling. The sort of harm which concerns liberals - in the original sense - is that which constitutes an infringement of liberty.

[JasonT20]

If you really want to argue for for anti-discrimination law honestly, then just admit that you are against freedom of association. If freedom of association results in things you don't like, you're willing to compel association in order to avoid those things.

I am against freedom of association in the same way that I am against freedom of speech. I don't believe that freedom of association is a freedom to discriminate in private business, or other accommodations, that purport to be open to the general public in exactly the same way that I don't believe that freedom of speech is the freedom to lie about people in ways that cause measurable harm to them (i.e. defamation).

If you really want to argue for for anti-discrimination law honestly, then just admit that you are against freedom of association.

I'm assuming that your intention was to this out there as a rhetorical device rather than with any serious expectation that I would respond to it. Given that it is just taking my words and turning them back at me. But I just did respond to it, so now I expect you to respond to mine.

To reiterate what I was saying, with just slightly different word choices:

If anti-discrimination law violates freedom of association, then a person's right to freedom of association means that anyone can discriminate against anyone they want even for entirely racist, sexist, homophobic, or other bigoted reasons, regardless of the harm it does to black people, gay people, or women as a group when those kinds of bigots have enough power to affect them at scale.

You have continually framed hypotheticals in ways that are clearly designed to make it seem unreasonable. Generally, you've done so in ways that make the reasons for the discrimination reasonable or justifiable, and you've limited it the interaction between individuals where no obvious harm is done. That means that you've entirely avoided the very real, very serious problems that discrimination at scale causes, and how those problems are what anti-discrimination laws were passed to address.

You can't argue for that radical of an interpretation of the freedom of association and then not address how upholding that could have been consistent with remedying all of the systemic discrimination that anti-discrimination laws were passed to stop.

[JasonT20]

This kind of woulda coulda shoulda "harm" is just weaselling. The sort of harm which concerns liberals - in the original sense - is that which constitutes an infringement of liberty.

Dealing with the harms that people can cause each other is the whole point of having government in the first place. Your version of libertarian thinking missed the whole point of the words chosen for the Declaration of Independence. [emphasis mine]

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

It isn't just government that can violate our rights to life, liberty, and the pursuit of happiness. Violent crime and property crime does that too, and that is one of the primary purposes of government, as all libertarians I've ever heard from will state. A just government protects the rights of the weak from the strong that would violate those rights.

The Constitution doesn't refer to equality other than the Equal Protection Clause, because the Founders didn't believe in true equality. The "all men are created equal" was obviously qualified in their minds by other factors that favored them as the American elite, and it was not a universal principle to them in the same way that it is to most of Western society now. I tend to wonder if people that bristle now at valuing equality as much as individual liberty do so for the same reasons that the Founders did.

Equality and individual liberty are only in conflict in the same way that all of our rights can conflict with each other. Insisting that we shouldn't even be trying to include equality in the balancing act between competing rights is a stand that is hard for me to understand.

[Lee Moore]

Jason : Your version of libertarian thinking missed the whole point of the words chosen for the Declaration of Independence. [emphasis mine]

No, it didn’t.

… to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

It isn't just government that can violate our rights to life, liberty, and the pursuit of happiness. Violent crime and property crime does that too, and that is one of the primary purposes of government, as all libertarians I've ever heard from will state. A just government protects the rights of the weak from the strong that would violate those rights.

Correct. THOSE rights. The government protects your right to life by threatening to punish those who might take it from you. Likewise your liberty. And your right to pursue happiness (which is a subset of liberty.) When the government itself starts confiscating your liberty it ceases to be “just.” Failing to provide taxpayer funded contraception, or failing to compel insurance companies to provide contraceptives in health plans is not a failure to secure THOSE rights. It’s a failure to secure a completely different set of “rights” – the “rights” to other people’s stuff, and the "rights" to order other people about. “Rights” which appear nowhere in either libertarian thought or the constitution.

Equality and individual liberty are only in conflict in the same way that all of our rights can conflict with each other.

This slogan has been repeated so many times that I will forgive you for having swallowed it whole. Nevertheless it is obviously false. Equality of liberty does not conflict with itself. Your liberty to swing your fist ends where my nose begins. I can exercise my liberty to any extent that does not infringe your liberty. That’s why that “just” government gets to punish murder, assault, theft and so on. These are all infringements of someone else’s liberty.

But equality of [insert anything other than liberty] does indeed conflict with liberty. If you want equality of wealth, or equality of educational opportunity, or equality of housing or contraceptive access or whatever, these equalities necessarily conflict with liberty, because they cannot be delivered otherwise than by force or coercion – ie by confiscating Peter’s liberty, so as to give Paul a leg up.

Conflict of rights exists only by imagining “rights” in addition to liberty. Weasely egalitarians traditionally call these things “positive” liberties for rhetorical purposes – to try to cloak the fact that they are in reality confiscations of liberty.

[JasonT20]

Lee,

You continue to argue only in broad, and purely philosophical terms. I've asked multiple times, so I'll just ask it once more:

How can pervasive discrimination, like what existed in 1964 when the Civil Rights Act was passed, be eliminated while maintaining your interpretation of the freedom of association?

I maintain that it cannot. I see your arguments for freedom of associations as enshrining as a fundamental right exactly the kinds of behavior that left black people in the U.S. at a major disadvantage in their ability to compete economically. That same behavior also left few women with the opportunity to pursue professions with higher social status and higher pay.

[Lee Moore]

You have forgotten that this little discussion derives from your objection to ReaderY's very reasonable characterization of anti-discrimination laws as a species of morals legislation.

You responded with the ideas that they have something to do with rationality - which I think we have successfully disposed of, and the idea that private discrimination can prevent people from participating equally in society.

The second idea depends on the philosophical question of what shape "equality" ought to take. There is no dispute between us that private discrimination - aka liberty - allows me to treat you and your brother differently. With the result that your brother may complain that my discrimination prevents him participating equally in society (ie that part of society tht is me.) But as I have explained - so what ? That is not the sort of equality favored by people of a (traditional) liberal bent, nor by the constitution. It is the sort of equality favored by those who reject the value of liberty. Marx, Lenin, Schicklgruber's boy, Mao. I spit on such equality.

The equality that is valuable is equality of liberty, or equality in its sense of equal moral worth. Or, if you are godly, equality in the eyes of God.

Hence whether infringing liberty with anti-discrimination laws actually nudges society in the direction of more equality in the Marxian sense is of little interest to me. It is a bad idea, per se.

Practically speaking, given the record of formerly disfavored ethnic groups in the US - Chinese, Jews, Irish etc - bootstrapping their way to success at least as well as the children of WASPs, long before the 1960s, I seriously doubt that the LBJ et seq experiment has had any serious equalizing effect (equalizing of outcome.) And efforts to double down with DEI are no more likely to. Most racial discrimination was propped up by state action, or state inaction in deliberately failing to police private infringements of liberty.

As a general matter, a good dose of capitalism in the raw - unregulated and very lightly taxed, is the best dissolver of unprofitable hidebound attitudes. And raw capitalism, aka free markets, is a subset of freedom of association.

[JasonT20]

You have forgotten that this little discussion derives from your objection to ReaderY's very reasonable characterization of anti-discrimination laws as a species of morals legislation.

And everything we've been discussing since then, including the points I've conceded about rational vs. irrational reasons to discriminate (or that I would concede now, if I didn't do so explicitly already), show how artificial ReaderY's claim that anti-discrimination law is an example of a "morals" law, whereas other laws are not.

We have been talking this whole time about whether anti-discrimination law restricts some people's rights and liberty (to engage in discrimination). And whether such laws are necessary to protect other people's rights and liberty (to participate in society on equal terms). You disagree with my assertion that people do have a right to participate equally in society in a way that the open bigotry of the past prevented.

This isn't about "morals." It is about rights and freedoms. Framing it as a "morals" law was loading the issue against anti-discrimation law by presupposing that fighting discrimination is only a matter of personal "morals" and not about any fundamental rights.

Practically speaking, given the record of formerly disfavored ethnic groups in the US - Chinese, Jews, Irish etc - bootstrapping their way to success at least as well as the children of WASPs, long before the 1960s, I seriously doubt that the LBJ et seq experiment has had any serious equalizing effect (equalizing of outcome.)

This is as close as you've gotten yet to answering my direct question, and you still avoid giving a direct answer. Chinese, Jews, and Irish-Americans benefited from the Civil Rights Act just as much as black people did. To say that they "bootstrapped" their way to "success" is not supported by anything you've said.* Not to mention that you seem to not know how many Jews were part of the legal efforts to combat discrimination in the Civil Rights era and in getting the Civil Rights Act passed. Those Jews must have thought it would be necessary to have legislation to obtain equal rights in the U.S.

And efforts to double down with DEI are no more likely to. Most racial discrimination was propped up by state action, or state inaction in deliberately failing to police private infringements of liberty.

When discrimination was "propped up by state action" or inaction, why would that be? Because there was a large segment of the population that wanted to discriminate. Most discrimination was done without any laws mandating it. And as for state "inaction"...what have you been asserting other than a denial of legitimate state authority to police private discrimination?

I can only assume that this point that you will not explain how discrimination that existed before and during the height of the Civil Rights movement could have been effectively fought without anti-discrimination law. You are just going to continue to hand-wave about the free market. That kind of magical thinking never solves any real problems.

* It's a pet peeve of mine that "bootstrapping" or to "lift oneself up by their bootstraps" is taken to mean helping oneself instead of relying on assistance, since it is literally impossible to lift oneself up by their own bootstraps. The original meaning ~200 years ago was for it to be a sarcastic or ironic way of describing something that is literally impossible or at least that it would not be credible to think that it could be accomplished.

[Lee Moore]

We have been talking this whole time about whether anti-discrimination law restricts some people's rights and liberty (to engage in discrimination).

Which it obviously does. But I reject your "rights and liberty" formulation. I'm interested in "liberty." I accept that the constitution confers some political rights - eg to vote, and to the equal protection of the laws (which is process specification of how the government must protect your liberty, not a separate "right.")

But you are correct to say that I "disagree with [your] assertion that people do have a right to participate equally in society in a way that the open bigotry of the past prevented." They don't. They are entitled to equal liberty. And that is all.

This isn't about "morals." It is about rights and freedoms.

It became about morals as soon as you slid "rights and" into the second sentence. Your "rights" are simply the gifts that you wish to compel Peter to provide for Paul because you think it is moral that he should do so. Hence Reader Y's characterization.

This is as close as you've gotten yet to answering my direct question, and you still avoid giving a direct answer.

My direct answer is that your kind of equality is undesirable, because it can be pursued only by assaulting liberty. Hence I don't care whether your catalogue of compulsions achieve the effects you wish them to. I merely note that in practice, I doubt that your favored compulsions do achieve the effects you hope for.

When discrimination was "propped up by state action" or inaction, why would that be? Because there was a large segment of the population that wanted to discriminate.

Obviously. And there still is. The lefties are heavily wedded to racial discrimination, hence the DEI circus.

Most discrimination was done without any laws mandating it. And as for state "inaction"...what have you been asserting other than a denial of legitimate state authority to police private discrimination?

If lots of people want to keep blacks out of their neighborhood, but there are some landlords attracted by the custom brought by black folk wanting to move in, the landlords may be on the receiving end of some friendly warnings about the fire risks. If the cops act to catch and prosecute those making the threats, that is a perfectly legitimate government action which is wholly consistent with liberty. I have never suggested that policing violent crime is antithetical to liberty. Quite the opposite.

So the sort of government inaction I am talking about is when the cops decide to do nothing, when they shoud be protecting the landlords' liberty to rent their property to who they want to, and the prospective tenants liberty to rent from a willing landlord.

[JasonT20]

Which it obviously does. But I reject your "rights and liberty" formulation. I'm interested in "liberty." I accept that the constitution confers some political rights - eg to vote, and to the equal protection of the laws (which is process specification of how the government must protect your liberty, not a separate "right.")

But you are correct to say that I "disagree with [your] assertion that people do have a right to participate equally in society in a way that the open bigotry of the past prevented." They don't. They are entitled to equal liberty. And that is all.

You're playing games with the words now.

You had previously written,

Correct. THOSE rights. The government protects your right to life by threatening to punish those who might take it from you. Likewise your liberty. And your right to pursue happiness (which is a subset of liberty.)

Also,

Conflict of rights exists only by imagining “rights” in addition to liberty.

The right to pursue happiness is a subset of liberty, and you are concerned with liberty, not rights, but rights are only something imagined in addition to liberty...So, what is it you really think here?

My direct answer is that your kind of equality is undesirable, because it can be pursued only by assaulting liberty. Hence I don't care whether your catalogue of compulsions achieve the effects you wish them to. I merely note that in practice, I doubt that your favored compulsions do achieve the effects you hope for.

That was a not a direct answer to my question. Instead, you reject the desirability of the goal I was asking about. In a way, you did answer, though it was by no means direct. You don't want anti-discrimination law, and thus you don't want the kind of equality it was intended to bring about, because it violates the "liberty" of people to discriminate on any basis that they feel like using. The kind of discrimination faced by many different groups of people because of their race, gender, religion, national heritage prior to the successes of the Civil Rights movement—discrimination that kept them from achieving the level of economic success, generational wealth, and liberty to live where they wanted that most people will say is an essential component of what they pursue to make them "happy"—that discrimination was just a small price to pay for a principle of free association as you envision it. The Civil Rights Act was a mistake, and it would be better that the discrimination built into society at the time would continue indefinitely than to limit the liberty of bigots to engage in that discrimination.

If lots of people want to keep blacks out of their neighborhood, but there are some landlords attracted by the custom brought by black folk wanting to move in, the landlords may be on the receiving end of some friendly warnings about the fire risks. If the cops act to catch and prosecute those making the threats, that is a perfectly legitimate government action which is wholly consistent with liberty. I have never suggested that policing violent crime is antithetical to liberty. Quite the opposite.

This is ridiculous. If those landlords interested in renting to black people found that their local banks would close their accounts? Restaurants wouldn't serve them? No violent crime there. Your opinion is that the cops should stand by and let that happen.

Basically, if enough people want to discriminate, and can bully (non-violently, of course) everyone else into going along, then that it just tough shit for the targets of the discrimination.

You may be right, in the end. I don't want anything to do with that concept of 'liberty'. It is only a liberty for those with wealth and influence to get what they want and to keep those beneath them in that position. All of this might just work out great for you, if you can stay on top.

[Lee Moore]

The right to life, liberty and the pursuit of happiness is a rhetorical formulation which describes simply …. liberty.

As I explained the right to pursue happiness is a subset of liberty, just as is the right to pursue athletic prowess or the right to pursue marriage. You are not guaranteed any right to succeed in these pursuits, only the right - aka liberty - to pursue them without interference by the government or by criminals.

The right to life is likewise a subset of liberty. It requires the government to protect your life from criminals.

But it does not promise you everlasting life nor does it promise to protect you from disease or bears or starvation. Those risks - ie those which are not assaults on your liberty - you must take care of yourself.

[Lee Moore]

The sort of community wide boycotting and shunning - absent government assistance and absent private violence or threats - is not really practicable in any community larger than a village.

Because people are ornery and they won’t all toe the line. Unless it’s a religious community like the Amish.

And those Amish who don’t like being shunned but who won’t abide by the community’s rules ….. just leave.

A bullying community that is so large that you can’t practically leave it is never maintained by everyone voluntarily going along. It always requires force or coercion.

Since you mention banks, you will recall the “nice bank you’ve got there” coercion of banks to debank the gun industry. Practised by the last two Dem administrations. Or the state sponsored harassment of the Colorado cake guy.

If you see some bullying going on you can be pretty sure the government is involved.

And as a description of 21st century America the idea that you couldn’t easily escape a community bent on shunning you - it’s a laughable justification for retaining anti discrimination laws.

[JasonT20]

And as a description of 21st century America the idea that you couldn’t easily escape a community bent on shunning you - it’s a laughable justification for retaining anti discrimination laws.

It is only "easy" to escape a community like that if you have the financial means to move somewhere else. This was the whole point, for crying out loud. People that don't have much financial means, because of discrimination, can't move somewhere that doesn't have bigoted people that will discriminate against them.

You are looking at this only from your own perspective. I don't know anything about you, but I can only guess from your arguments that you would not find it difficult to move somewhere else if there was something about the culture, economic climate, or whatever else in your local area that you didn't like. And because you have that ability, that liberty, you think that should be good enough for everyone else.

Those risks - ie those which are not assaults on your liberty - you must take care of yourself.

The line of reasoning you made leading up to that has a problem that you won't see. Discrimination is an example of people placing a hurdle in the way of someone's pursuit of what they want or need. It isn't a random circumstance that is not the fault of individual people or a group of people. Those random, natural "risks" that stand in the way of someone's health, economic success, or 'happiness'—you correctly identify as there being no right or liberty to be free from those those.

You are not guaranteed any right to succeed in these pursuits, only the right - aka liberty - to pursue them without interference by the government or by criminals.

Criminals, huh? What counts as a crime, then? Certainly not just physical assaults on a person or their property, since fraud is a crime. But you can't just mean violators of criminal law, because there are also many civil laws that can find people liable for harms caused by their actions (such as defamation, tortious interference, pollution caused by actions on one's own property,...). Or would you do away with all of those laws as well because they would restrict the 'liberty' of some individuals to engage in those actions?

It is the "without interference" that you bring up where we have our difference. You want to limit the government stepping in to address interference by "criminals" or through civil lawbreakers where you get to define who is criminal or who is violating an important enough civil law, and who isn't. And you want to define "interference" in a way that doesn't include discrimination, but that presumably would include other actions that fall under civil laws you approve of. And that last part is where you are going off the rails. You are putting discrimination by race, gender, religion, etc., in a category separate from other forms of interference with the targets' liberty to pursue their own needs and desires. And your explanations of why it should be in a different category aren't holding up.

[JasonT20]

And, I also keep falling for your distractions anyway. It doesn't matter, at all, how "easy" it is to avoid discrimination for your main argument. If it is a violation of a fundamental right to free association, I'm sorry, "liberty" to associate freely, then whether the harm to those being discriminated against is major or just a minor inconvenience is irrelevant.

[Lee Moore]

“And because you have that ability, that liberty, you think that should be good enough for everyone else.”

You have arrived at the nub. “Ability” and “liberty” are two completely different ideas. I have the liberty to pursue a career as a ballet dancer. No law restrains me, no vigilantes stand ready to prevent me pursuing my dream, and no fire bomb threats are phoned in to the dance studio. But I do not have the ability. I am, obviously, a competent dancer if nothing special, but as for ballet – if that ship was ever in dock, it has now sailed. There’s a ton of things that I am free to do that I lack the ability to do. The same is true of everyone else. In some endeavors, ability encompasses not just physical or mental prowess, but resources. I’m free to buy a superyacht and sail the oceans with my buddies. But the bank won’t lend me the money.

This is the rhetorical ur-trick of modern, aka fake, liberals. The pretence that ability and liberty are the same thing. They’re not. Liberty should be – and can be – possessed equally by all adult members of the polity. Ability cannot be possessed equally, and government measures to equalize possession of “ability” necessarily destroy liberty. Which is not to say that ability is a bad thing – obviously not. It’s well worth pursuing – by voluntary means, including free association.

“Discrimination is an example of people placing a hurdle in the way of someone's pursuit of what they want or need. It isn't a random circumstance that is not the fault of individual people or a group of people.”

No. People who choose not to assist you to achieve your dreams are not placing a hurdle in your way, they are merely declining to help you climb over a hurdle that is already there. No one has any obligation – absent a pre-existing contract voluntarily entered into – to give you a job, sell you a car, rent you an apartment, extend you credit, tell you the way to the nearest subway stop, offer you a sandwich or go on a date with you.

The fact that 99% of people will choose to point you in the direction of the nearest subway stop, if you ask and if they know the way, does not make it an obligation on them. They do it voluntarily. The 1% who ignore your request are not in the hurdle placing business. They’re in the ignoring you business.

“Criminals, huh? What counts as a crime, then?”

I was using “criminals” in the sense of those private persons who seek to infringe your liberty – distinguishing them from the government trying to do that. The guys phoning in fire bomb threats. Not those committing offenses against the administrative state – eg operating a hair salon without a license.

“ You are putting discrimination by race, gender, religion, etc., in a category separate from other forms of interference with the targets' liberty to pursue their own needs and desires.”

No. My categories are (a) interference with “the targets’” liberty (which is a foul) and (b) declining to assist “the targets’” pursuing their own needs and desires (not a foul.)

And the hair salon does very well by way of illustration. If you Jason the hairdresser have got yourself licensed, you have a government granted legal “right” to dress hair. But if I walk in and ask for a haircut you are – or should be – entitled to say “No – eff off. You’re that reactionary guy from the VC. I want nothing to do with you.”

If state laws require you to cut my hair, your liberty is being infringed. And if the terms on which you were granted a license require you to cut my hair – then ditto. You should be allowed to cut hair without a government license (see : liberty – you should not need a government granted legal right to do something that you should, in a sane world, be free to do anyway.)

It doesn’t matter how urgent is my need for a haircut. If neither you nor any other dresser of hair wants to serve me, it’s tough noogies for me. My overlong hair is a hurdle placed there by nature, not you.

[JasonT20]

You are absolutely determined to continue using examples or hypotheticals framed where the targets of discrimination are on an even playing field with the people engaging in the discrimination. This has no bearing on the issue of anti-discrimination law, because it simply not analogous to the discrimination that was routinely practiced on a large scale against actual black people, women, Jews, and many other groups, none of whom were hypothetical.

One...last...time: How would your conception of liberty deal with that kind of systematic discrimination, as it existed before and during the Civil Rights movement? No more hypotheticals. Either apply your ideas to the discrimination faced then by black people all over the country (not just in the South) in employment and housing, by women trying to become doctors, engineers, or business executives, or Jews, Hispanics, Asian-Americans, and more, or admit that you don't want to deal with the implications of your beliefs for the real world.

I won't respond again to anything else you have to say on this if you won't answer that straightforward question.

[Lee Moore]

“How would your conception of liberty deal with that kind of systematic discrimination, as it existed before and during the Civil Rights movement?”

Stipulating :

that none of this “systematic discrimination” took the form of, or was assisted by, government action (eg Jim Crow laws, discrimination by government bodies) or government inaction (ie failing to police and prosecute private violence, threats, coercion etc intended to enforce segregation)….

I would :

(a) in my private capacity, support charities offering free or subsidized bus tickets for those wishing to leave areas of greater discrimination for areas of lesser discrimination, who were unable to afford those bus fares unsubsidized, and
(b) in my official capacity of Ineffable Wizard of the United States with unlimited executive and legislative power I’d be repealing any laws tending to make it harder for a poor man stepping off a long distance bus to find work. Including, obviously, minimum wage laws, compulsory union recognition laws, business regulations requiring licenses for ordinary trades, high taxes and so on. (Strictly these would all have been abolished long ago, unless I had only recently inherited the Wizardship.)

But what I definitely would not do is introduce laws compelling Mr A to work for Mr B against his will, as per Colorado and Jack Phillips. For under my Wizardship there would be no slavery or involuntary servitude in the United States. And generally I would be allowing the corrosive powers of the free market to break down unprofitable attitudes over time. I would not be junking freedom of association, I would be relying on it.

If the stipulation is in fact false, then of course I’d be repealing Jim Crow laws, adjusting membership of the Topeka Board of Education, dismissing and replacing police officers and judges who might be failing in their duties accidentally on purpose and so on.

[Lee Moore]

Since we’re winding up this discussion, I’ll just add a couple of points in response to two of your earlier contributions :

1. “We aren't talking about things like personal social interactions. We are talking about businesses, employment, housing... Discrimination in those contexts is fundamentally different.”

This is the other great modern "liberal" ur-dodge on liberty. Liberty means liberty in non-commercial associations. Liberty in commercial matters is, er, handwave handwave, not real liberty. Except it is. Liberty is liberty period. Freedom in your commercial associations is not a different concept from freedom in your non-commercial social interactions. Nor is commercial life strictly segregated from non commercial life. Many things are a mix of the two.

This conceit - that commercial liberty is not real liberty has been captured neatly in the absurd "Polital Compass" which abstracts all aspects of commercial authoritarianism from its libertarian / authoritarian axis, and places them in a separate left/right axis. Solely to allow lefties to bask in their imagined love of "liberty", by rebadging commercial authoritarianism.

2. “If anti-discrimination law violates freedom of association, then a person's right to freedom of association means that anyone can discriminate against anyone they want even for entirely racist, sexist, homophobic, or other bigoted reasons,regardless of the harm it does to black people, gay people, or women as a group when those kinds of bigots have enough power to affect them at scale.”

This is another example of oh-so-common lefty euphemizing. If electricity can be used to light streets, power medical equipment, facilitate a worldwide communication system, and... toast people in the electric chair ….. the thing that toasts people in the electric chair would be electricity. That can’t be right. Eletricity is good. It can’t do bad things. So let’s redefine electricity to exclude those uses of it we don’t like.

No, let’s not.

Freedom of association is freedom of association. If there are aspects of it yu don't like, fine, just say so. Don't redefine it to include those aspects of freedom of association that you like and
exclude those aspects of it that you dislike.

[JasonT20]

After all of this, your proposed solution is for you, one person, to chip in to help maybe a few people buy a bus ticket to a different town that may or may not be less likely to discriminate? And to fantasize about being a benevolent dictator to wave a wand and eliminate laws you don't like for entirely different reasons?

When your efforts aren't enough, when those people need more than just a bus ticket to move themselves and their families to a new town, when not enough people join you to help, and when there is no other town for them to go to in order to escape discrimination by potential employers, landlords, and businesses, then what?

These are obvious follow up questions to what you wrote, and you didn't think about that?

You really must not think it is important enough of a problem to address, if you won't follow your arguments past what gives you the answer you want. The problems faced by targets of discrimination are just too abstract to cut through the philosophy behind your beliefs.

[Lee Moore]

After all of this, your proposed solution is for you, one person, to chip in to help maybe a few people buy a bus ticket to a different town that may or may not be less likely to discriminate?

No my proposed solution is to leave it to free association, and particularly to that part of free association that we call the market. My personal charitable contribution is trivial.

And to fantasize about being a benevolent dictator to wave a wand and eliminate laws you don't like for entirely different reasons?

The benevolent dictator is simply an abstract representation of what could be done with political power. In reality my political power is even more trivial than my charitable power.

You really must not think it is important enough of a problem to address, if you won't follow your arguments past what gives you the answer you want. The problems faced by targets of discrimination are just too abstract to cut through the philosophy behind your beliefs.

Racial discrimination is much less significant than it was in the 1960s, or 1920s, and freedom of association, especially the market, is the main reason for that. along with the passage of time. That you imagine it has something to do with government assaults on freedom of association just marks you as a naif.

[Lee Moore]

At least you don't refute the premise of anti-discrimination law being the proposition of everyone being "created equal." How's that for the Declaration of Independence for you?

But in what sense are they "created equal" ? Clearly not in physical and mental attributes - talents, personality, disabilities and so on.
They are only equal in a moral sense - ie that they arrive without distinction of rank. The motto is a refutation of rank - nobility and monarchy. The only respect in which equality obtains is the initial conferring of moral and legal rank.

The Founders approved of equality in the sense of equality of liberty.
And it is liberty which is offended by laws against private discrimination. Liberty being an inalienable right. By forcing me to associate with you against my will, you have alienated my liberty .... without even increasing your own liberty. For a government conferred right to force other people to associate with you is not liberty, it's just a government conferred privilege.

It's a bad bargain - for a government that can do that, can diminish everyone's liberty.

[JasonT20]

The Founders approved of equality in the sense of equality of liberty.

You can't hold up the Founders as believing exactly what they wrote. They didn't extend their sense of equality of liberty to women. They didn't extend it to all non-white people (or many non-white people at all).

Almost everyone now, in free, western societies, believes in a far more expansive kind of equality than what the Founders actually practiced.

[not guilty]

No, adult entertainment is not a subset of obscenity. Nude dancing is protected expression under the First Amendment. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.") Obscene material is unprotected, Miller v. California, 413 U.S. 15. 23 (1973), except where possessed privately in one's own home. Stanley v. Georgia, 394 U.S. 557, 565 (1969) ("If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.")

[ReaderY]

Intermediate scrutiny means semi-protected.

I’m suggesting that if you look at the Supreme Court cases in their totality, there isn’t really a binary, despite language saying there is. I think if you look at Renton v. Playtime Theatres, Barnes v. Glen Theatre, and other cases upholding “adult entertainment” restrictions and take them together, I think you’ll find that while each case individually might be (with difficulty) explainable within a binary framework, the totality of them put together means that “adult entertainment” doesn’t really de facto get the same level of scrutiny as traditional political speech, despite your ability (which I don’t dispute) to fish out quotes saying otherwise.

Why not be honest about it and say so? Why not stop the hypocrisy by the simple expedient of making what the Supreme Court says match what it does, the way it actually rules?

I understand you would prefer to resolve the hypocrisy the other way, by making what Supreme Court does match what it says. But as Professor Sasha Volokh noted, my proposal, agree with it or not, is a perfectly logical and coherent one. It’s just as inherently reasonable and internally consistent to resolve the discrepancy one way as the other.

[not guilty]

No, intermediate scrutiny doesn't mean semi-protected. It means protected, but subject to a different variety of scrutiny.

In any event, content neutrality is required under intermediate scrutiny as well. Ward v. Rock Against Racism, 491 U.S. 781, 791-792 (1989).

[ReaderY]

The whole subject is a historical/originalist carveout from the usual First Amendment rules. The usual rules don’t apply to sui generis, historically/originalist based exceptions.

The whole category of sex, like libel, crime facilitation speech, and other classic exceptions, has a unique history. All exceptions are content based. You always have to look at the content to determine if an exception applies. Are libel laws a violation of the First Amendment because they are content based? Of course they are content based. What you are doing is the equaivalent of someone a generation ago using quotes from Lemon to prove that Marsh v. Chambers can’t exist. But it does exist, and it and its cousins identify a category of exceptions rather than all of them being unique and inexplicable one-offs. Marsh was completely inconsistent with Lemon and there was no way to square it. It was an exception. I’m saying the same thing applies here.

Current caselaw claims to set a single boundary much narrower than even half a century ago, separating what can be completely banned from whst is completely protected. But in reality there are two boundaries. Much of what could be completely banned a century ago can’t be completely banned today, but can, based on a series of individual cases, be regulated today more than pure political speech. Why not recognize these cases as creating a category?

[wvattorney13]

Nude dancing, although having some expressive component, is largely conduct that can be banned under public indecency statutes. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

[not guilty]

Apart from the legal issues here, I have long wondered why many folks who call themselves "pro-life" advocate defunding Planned Parenthood. That organization, by promoting and facilitating contraception, has prevented more abortions that otherwise would have occurred than all the "sidewalk counselors" alive have ever dreamed of.

[Bob from Ohio]

Because PP also performs most abortions.

This is another addition of simple answers to stupid questions.

[JasonT20]

Is the goal to make abortion difficult or impossible to obtain legally, or to reduce the actual number of abortions? Even aside from Planned Parenthood, wouldn't it make sense for abortion opponents to support increased access to contraception and comprehensive sex education? Or is it another goal that has even higher priority to make sure (fertile) people have to choose between risking pregnancy and not having sex?

Talking about simple answers, an obvious way to reduce abortion is to reduce unwanted pregnancy.

[The Margrave of Azilia]

Let us apply some skepticism, not to one side only, but to both sides. Those who sometimes call themselves "prochoice," or who sometimes skip the euphemisms and simply call themselves "pro-abortion," are not immune from questions as to the purity of their motives.

What motivates young "pro-choice" men, I wonder? After detailed study of embryology and the classic feminist texts, did they conclude that the right to abortion is essential to female empowerment? Or do they simply want to have consequence free sex, able to kill off burdensome children if their girlfriend(s) get pregnant?

What about people and organizations who perform abortions for money? Are they *all* wide-eyed idealists?

What about the politicians who "evolve" from acknowledging the humanity of the unborn into more politically-palatable positions in favor of killing them off? Did their change of mind involve acquiring greater scientific insight, or a desire to keep getting re-elected?

Etc.

[JasonT20]

Let us apply some skepticism, not to one side only, but to both sides.

By all means, apply skepticism equally to all claims.

Those who sometimes call themselves "prochoice," or who sometimes skip the euphemisms and simply call themselves "pro-abortion," are not immune from questions as to the purity of their motives.

Uh, okay, I wasn't so much questioning the motives. I was questioning the logic of opposition to abortion without also supporting improving contraceptive access and thorough sex education. (Both of which are things that Planned Parenthood does) That does question the motives of opposition to abortion, for those that hold that specific combination of positions, but even then only if they aren't aware of the cognitive dissonance that holding contradictory views creates. If they do recognize the contradiction, and don't care or ignore it, then I would definitely question their motives. You know, like if they are asked directly about the contradiction and then try and point the finger in the direction of the questioner instead of answering it.

What motivates young "pro-choice" men, I wonder? After detailed study of embryology and the classic feminist texts, did they conclude that the right to abortion is essential to female empowerment? Or do they simply want to have consequence free sex, able to kill off burdensome children if their girlfriend(s) get pregnant?

Holy loaded question, Batman! I don't think I even need to address this, since it is such ludicrously poisoned framing as to tell exactly how little logic you bring to the issue.

[The Margrave of Azilia]

You're assuming that Planned parenthood is risking its economic model in order to reduce abortions. Extraordinary claims require extraordinary evidence.

[JasonT20]

Do you think I am a sock puppet for not guilty or something? I never said that. I don't think we have enough information to know whether they would benefit or be harmed fiscally if increased use of birth control led to fewer abortions. Nor do I think that it would necessarily matter to them either way. Their stated goals are to serve whatever healthcare needs women that they specialize in.

I have made no such claims, nor is anything I have said an extraordinary claim. You continue to dodge questions in favor of arguing against what you think you can defeat.

[The Margrave of Azilia]

You questioned the motives of prolifers who failed to get onboard with your talking point about "improving contraceptive access and thorough sex education."

I'm not sure what would *improve* contraceptive access nowadays. You can go into any supermarket or convenience store and get get condoms, and you can get pretty much any oral or injected contraceptive by prescription.

The problems of abortion (not to mention fatherless children born out of wedlock) got worse as contraception and abortion got more "accessible." You'll say I'm attributing a cause-effect relationship, when in fact I'm saying that your magic pills don't seem to be having the effect you promised. Yet anyone who doesn't share your delusion about spreading birth control around is the one with bad motives?

The bad motives come from people who want to kill living human beings, and then concoct pseudoscientific excuses about how they were never human in the first place. They wouldn't dehumanize the unborn if they didn't first want to dull their consciences about killing them.

[JasonT20]

You questioned the motives of prolifers who failed to get onboard with your talking point about "improving contraceptive access and thorough sex education."

How much of what I'm writing are you even reading? I'm just going to copy and paste the parts you're skipping over as if I hadn't said them if you're going to ignore them this blatantly.

Uh, okay, I wasn't so much questioning the motives. I was questioning the logic of opposition to abortion without also supporting improving contraceptive access and thorough sex education. (Both of which are things that Planned Parenthood does) That does question the motives of opposition to abortion, for those that hold that specific combination of positions, but even then only if they aren't aware of the cognitive dissonance that holding contradictory views creates. If they do recognize the contradiction, and don't care or ignore it, then I would definitely question their motives. You know, like if they are asked directly about the contradiction and then try and point the finger in the direction of the questioner instead of answering it.

I'm not sure what would *improve* contraceptive access nowadays. You can go into any supermarket or convenience store and get get condoms, and you can get pretty much any oral or injected contraceptive by prescription.

Oh, so we're a country with universal healthcare and every woman has easy and affordable access to the doctors that would prescribe those things, and without copays that they couldn't afford? If you're so sure contraception access is already easy to get, then you'd have no problem finding out whether that is actually true. I also see little reason to think that legal access to birth control isn't at risk post-Dobbs.

The problems of abortion (not to mention fatherless children born out of wedlock) got worse as contraception and abortion got more "accessible."

I don't know how you're defining the "problems of abortion" or in what way they are "got worse." Legal abortions have decreased dramatically from their peak in the 80s.

[The Margrave of Azilia]

So contraception and "thorough" sex-ed became more prevalent after the 1980s? It certainly wasn't the passage of more prolife laws on the state level, or prolife groups helping women in problem pregnancies. /sarc

[The Margrave of Azilia]

The supporters of "contraceptive access" are never going to be satiated. They wanted contraception to be legal, and they got that. But it had to be mandatory! So when employers were required to mandate contraception, were the advocates satisfied? No, because loopholes allowed orders of nuns to decide not to offer contraception to their lay employees.

No copay is needed to go to the gas station and pick up a condom or two, or ten.

No, we can't contracept ourselves out of the sexual revolution or make "every child a wanted child." We have to push back against those (like PP) who encourage out of wedlock sex between people who *don't* want to have each others' children.

[The Margrave of Azilia]

No citations?

[not guilty]

I wasn't discussing law -- the words "apart from the legal issues here" should have given a clue.

I understand that some people have legitimate objections to abortion rights. I don't understand why such people should prefer more abortions to fewer abortions. Take Planned Parenthood and similar clinics out of the picture, then more embryos and fetuses will be conceived, and more abortions will occur. An embryo or fetus which is never conceived will never be aborted.

That simple arithmetic suggests to me that there is a more insidious agenda at work.

[The Margrave of Azilia]

I'd still like to hear the evidence behind your counterintuitive assertion that PP is somehow undermining its own abortion-provider business model and reducing its own income.

[not guilty]

Planned Parenthood's business model is by no means limited to providing abortions. https://www.plannedparenthood.org/get-care/our-services/birth-control

https://www.plannedparenthoodaction.org/issues/birth-control/facts-birth-control-coverage

There is nothing counterintuitive about providing a wide range of health care services to women and girls.

[The Margrave of Azilia]

And nothing counterintuitive about supporting the censorship of people who offer alternatives to abortion.

[ReaderY]

I have a question for you. Why do liberals dissapprove of the Ku Klux Klan? One could argue with equal seriousness, and equal truth, that it was primarily a service organization that did a lot of good for a lot of people. In fact, it did a lot of good for MOST people. It’s only this small, unimportant minority that liberals complain about so much. Why do liberals put such emphasis on such trivia when the KKK’s value as a service organization to people generally was so obvious and manifest?

If you can agree with that about the KKK, then you’re entitled to continue arguing that pro-life people ought to approve of Planned Parenthood. If you can’t bring yourself to agree, then ‘nuff said.

[Lee Moore]

Apart from the legal issues here, I have long wondered why many folks who call themselves "pro-life" advocate defunding Planned Parenthood.

1. There is the obvious point that one may not wish to support an organization that promotes both horse racing and gambling, even if one approves of horse racing.

2. Then there is the second obvious point that contraception is by definition an attempt to prevent a new life. Hardly illogical for pro-life people to disapprove of it.

3. Then there is the third obvious point that for many non-atheist pro-lifers, their religion underlines number 2 with an edict from God

4. Then there is the fourth obvious point that "contraception" as per Planned Parenthood includes abortion, so it's hardly illogical for pro-life folk to be sceptical about assisting PP's "contraception" efforts.

5. And then there is the fifth obvious point that many folk, whether "pro-life" or not, do not approve of funding things from the taxpayer's pocket that can just as well be funded by private means.

Aside from that, I enjoyed the play very much, since you ask.

[JasonT20]

2. Then there is the second obvious point that contraception is by definition an attempt to prevent a new life. Hardly illogical for pro-life people to disapprove of it.

For a narrow definition of "pro-life" that means wanting there to be more babies born, perhaps. But I always thought that pro-life was more defined around wanting to be sure that the embryo or fetus has the opportunity to be born once it exists. Wanting more pregnancies to occur seems like a separate issue, to me. The first would be grounded in thinking that it has a full right to live that overrides the woman's choices for herself, once conceived, while the other would be rooted in wanting to increase the population, I guess.

In either case, I don't see "pro-life" having much to say about children after they are born. So, wanting more babies being born without wanting to do more to support the growth and development of those babies doesn't seem very well thought-through.

[ReaderY]

What you’re doing here seems to be constructing your own personal definition of “pro-life,” then criticizing pro-life people for being hypocrites because what they mean by “pro-life” doesn’t match what you mean.

I think you should consider letting other people tell you, and define, what they mean themselves rather than telling them what they mean or blaming them for not meaning what you think they ought to mean.

And I’d like to bring up a related issue. There is a whole topic, a whole way of dealing with others, of treating other people with respect in discourse, letting them speak for themselves, trying to understand what they mean and what they think rather than being quick to impose your own thoughts on them, etc., that can be exercised or not more or less independently of whether one comes out liberal or conservative on the various social issues of the day.

I’d suggest that you might benefit from attempting to increase your score on this particular scale.

[Lee Moore]

But I always thought that pro-life was more defined around wanting to be sure that the embryo or fetus has the opportunity to be born once it exists. Wanting more pregnancies to occur seems like a separate issue, to me.

As ReaderY suggests, perhaps you need to get out more. No doubt there are some pro-life people who take the position you suppose them to take, but plenty don't. You have heard of the Roman Catholic Church, I assume ?

In either case, I don't see "pro-life" having much to say about children after they are born.

Why would you expect them to ? There are few voices calling for the exposure of infants, or drowning of toddlers, and so there's little call for vociferous opposition to these practices. There is an Australian philosopher who has argued for post birth abortion rights, and when he did pro-lifers argued back.

[JasonT20]

And then there is the fifth obvious point that many folk, whether "pro-life" or not, do not approve of funding things from the taxpayer's pocket that can just as well be funded by private means.

"Can" be funded "just as well" without government spending? Sure, if "can" means possible and that there are no artificial obstacles to private funding. But, starting by first defining what you would consider to be adequate funding for those things, do those things get adequate funding without government support, in practice?

[Lee Moore]

What is this "adequate funding" of which you speak ? What is the "adequate funding" of the peanut cultivation industry ? Would anyone ever attempt to calculate such a figure - and how would they go about it ?

Back on Planet Earth, peanut farmers - individually - would be estimating their costs of production, harvest size, sales prices year by year, or month by month, and approaching their bankers for loans as and when required. Is there really someone at Bank of America heading the Peanut Funding Division trying to work out how much can be lent to peanut farmers in aggregate this year ? Maybe. But I'm pretty sure that even if there is they don't START with a number for "adequate funding" - that's more of a Soviet style approach.

Of course if Bill Gates feels that peanuts are way too expensive these days and he wishes to devote $500m a year to providing interest free loans to peanut farmers, then sure, he may pluck $500m from the air. It's his money after all. But then we have no difficuty in identifying who and how "adequate funding" is to be calculated. It's Bill Gates and any damn way he pleases.

[wvattorney13]

Short of 24/7 free Doordash of contraception to your front door, I'm not sure what more this society could do in the way of providing contraception to everyone that wants it.

[Malika the Maiz]

Strange bedfellows indeed…

[The Margrave of Azilia]

"And so, adult entertainers and right-to-life advocates find themselves sharing the same doctrinal bed."

So be it, if lower taxes on dirty-picture establishments is a price we need to pay in order to have a chance to save more babies, then let the Supreme Court decree that tradeoff.

After that, let the abortion-fanciers explain why they suddenly are OK with higher taxes on "adult establishments."

[The Margrave of Azilia]

(explain to their libertine fellow-travellers, that is)

[jdgalt1]

I would uphold buffer zone laws. When a person is about to undergo surgery for very personal reasons, any approach to them is an implied threat that the courts ought to recognize as a true threat, both to their privacy and their personal safety. Such a moment is not a legitimate occasion for public debate.

[The Margrave of Azilia]

They said the same about wartime - not the time to debate the war.

And they said the same about labor relations - don't confuse the poor workers by approaching them as they go to work and asking them to join a union or a strike. It's not the time!

etc.

[wvattorney13]

That's a blueprint to suppress almost all one on one speech or advocacy. Simply decree that the person doesn't want to hear it or would somehow unreasonably believe that advocacy was somehow a threat (let alone a true threat).

You know, true threats have to be at least true. Approaching a woman entering an abortion clinic and trying to persuade her not to have an abortion is objectively not a threat and cannot be treated as such for First Amendment purposes.

[wvattorney13]

This brief proves that lawyers can make an analogy out of anything. This one seems tortured.