AG Pam Bondi Says "We Can Prosecute You" for Refusing to Print Posters for Charlie Kirk Vigil

But there doesn't seem to be any federal law actually authorizing such prosecutions (or civil lawsuits).

The Hill (Ashleigh Fields) reports:

Attorney General Pam Bondi on Monday said the Justice Department was investigating an incident involving a Michigan Office Depot employee who refused to print flyers advertising a vigil for conservative activist Charlie Kirk…. Office Depot said last week they removed the employee responsible for denying the order placed by the Kalamazoo County Republican Party.

Here's the Bondi quote, from Hannity on Fox, starting about 4:42:

Businesses cannot discriminate. If you wanna go in and print posters with Charlie's pictures on them for a vigil, you have to let them do that. We can prosecute you for that. But I have Harmeet Dhillon right now in our Civil Rights unit looking at that immediately, that Office Depot had done that. We're looking at that.

But no federal law, to my knowledge, purports to ban stores from discriminating based on the political expression of the material they're asked to print.

Title II of the Civil Rights Act of 1964 bans discrimination by certain places of public accommodation—such as restaurants, hotels, theaters, and places of public amusement—based on race, religion, and national origin. But it doesn't ban discrimination based on political views, and it doesn't apply to retailers, so it wouldn't apply here. It also bans discrimination based on disability, but that's not applicable here either. Businesses can discriminate, just not on bases that the law forbids; and here, federal law doesn't appear to forbid this sort of discrimination.

Now some jurisdictions do ban political discrimination in places of public accommodation (see this article). If such a ban were applied to a print shop that deliberately refused to process an order based on its political content, then it might violate the First Amendment (see the concurrence in Lexington-Fayette Urban County Human Rights Comm'n v. Hands On Originals (Ky. 2019), a case in which Cato Institute and I filed an amicus brief making the First Amendment argument).

That First Amendment claim would be strengthened, of course, by 303 Creative LLC v. Elenis (2023), which recognized a First Amendment right not to create a website for same-sex weddings. It's conceivable that a court might limit the First Amendment defenses to small businesses where the owner would have to do the work personally; cf. Rumsfeld v. FAIR (2006), which upheld certain requirements that universities host certain speech, and distribute related speech, though perhaps the reasoning of 303 Creative would apply even to a large business such as Office Depot.

But none of that even arises here, because those jurisdictions are certain cities and counties, some territories, D.C., and perhaps a few states. None of those laws applies to the Office Depot involved in this incident; and even if there was such a law in Michigan or in the town of Portage (where the store was apparently located), it wouldn't be enforced by the U.S. Justice Department. Perhaps I'm missing something here, but it's hard to see a credible legal basis for AG Bondi's statements.

Comments

[thesafesurfer]

Looks like Pam and Eugene have a date in court.

[Dr. Ed 2]

There is a point there that everyone is missing.

Eugene is a legal scholar and teacher -- his job is to figure out what the law currently is and to explain it to everyone. And he has tenure and doesn't serve at the pleasure of the Governor.

Pam is an advocate -- her job is to tell people what the law should be and she lacks tenure, serving at the pleasure of an elected President.

It's the Critical Race Theorists who make this confusing -- they should have been booted out of their faculty seats and told to run for office. What I see here are people attempting to hold Bondi to the standard of a law professor or judge when she is neither.

Her job is to advocate for the MAGA agenda.

[Jack Jordan]

Dr. Ed, it is wildly and egregiously untrue that Bondi's "job is to advocate for the MAGA agenda." The U.S. Attorney General is far from a mere "advocate" whose "job is [merely] to tell people what the law should be." Her constant duty is to serve the People in a manner that is faithful to our Constitution.

For very good reason, Article VI of our Constitution emphasizes that "all executive and judicial Officers, both of the United States and of the several States" are "bound by Oath or Affirmation, to support this Constitution."

Federal law (5 U.S.C. § 3331) is even more emphatic. To obtain her job, Bondi expressly acknowledged that her first, foremost and constant duty in all official conduct always will be to "support and defend" our "Constitution" against "all enemies, foreign and domestic" and to "bear true faith and allegiance" to our Constitution. Bondi's client is, as the Preamble emphasized, "the People."

Our Constitution (including the First and Fourteenth Amendments) emphasized that no public servant whatsoever may make or enforce any purported "law" that abridges "the freedom of speech" and "press." But that is exactly what Bondi is doing.

[Jack Jordan]

The legal issues here are super simple and super well-settled and for very compelling reasons. See West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

[Clearly,] the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."

So it "is any fixed star in our constitutional constellation," that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." That applies to Charlie Kirk as much as to any other pseudo saint-like figure. No public servant has any power to compel anyone to print anything lionizing Kirk.

[Stupid Government Tricks]

Yet the AG does not know these super simple and super settled bedrock principles.

[Dr. Ed 2]

"No public servant has any power to compel anyone to print anything lionizing Kirk."

Nor to compel FedEx to deliver them -- but wait, the concept of "common carrier" DOES so compel FedEx to do so, and as we increasingly live in a world of duopoly vendors, common carrier should apply there too.

[Jack Jordan]

Dr. Ed, clearly "carrier" is not the same as "the press."

[David Nieporent]

There is a point there that everyone is missing.

That the earth is flat?

[Josh R]

In this case, printing the flyers involved no customization. As such, it seems to me a law which required the printing of a third party's flyer (as opposed to a government's flyer) would not violate Office Depot's First Amendment rights.

Eugene doesn't see it that way, relying on Wooley whether the government or a third-party has been denied service. However, Eugene's compadre in 303 Creative, Dale Carpenter, believes customization is a key factor.

[Brett Bellmore]

Properly interpreted, (Cue Sarcastr0 shouting "Brettlaw!") Congress would have no power to compel the fliers to be printed; The 14th amendment says, "No state shall... nor shall any state"; Is Office Depot a state? And it's intra-state commerce, so no commerce clause basis.

But as the Wickard Court rewrote the commerce clause to read, "to regulate;", so it's not so simple. Congress might be able to enact a law extending public accommodation to printing houses, despite the obvious 1st amendment obstacle.

It is pretty indisputable, though, that Congress in fact hasn't, and that is where Bondi goes off the rails, even though the rails have been laid where they shouldn't be.

[MikeFr]

I do not think the government can force Office Depot to design or customize a poster - that is speech. However, I think the government can force businesses to perform purely mechanical tasks like printing, enlarging, converting formats (png, jpg, etc), and changing color models.

In this case, however, the person refusing was an employee, not Office Depot itself (which was apparently fine with printing the poster). I am not sure how that changes the analysis.

[Jack Jordan]

Mike, there's no possible way any public servant "can force businesses to perform purely mechanical tasks like printing, enlarging, converting formats (png, jpg, etc), and changing color models." Such functions are clearly within the meaning of "the press" in the First Amendment. In the 1780's people thought of "the press" as meaning, in significant part, physical printing presses.

[Brett Bellmore]

Except that "commercial speech doctrine" apparently trumps the 1st amendment.

[Jack Jordan]

Brett, how's that?

The "commercial speech doctrine" is part of so-called doctrine under the First Amendment. But this matter isn't about commercial speech. This is about compelling a printer to print something--and especially because of its politcial content. Moreover, mere judicial doctrine cannot trump the plain meaning of the plain text of our Constitution. Not even an actual statute enacted by Congress can do that.

Bondi is directly attacking and undermining "the freedom" of "the press" that is directly and expressly secured by the First Amendment. She's pretending or presuming to have the power to directly compel businesses to print. Such functions are clearly within the meaning of "the press" in the First Amendment. In the 1780's people thought of "the press" as meaning, in significant part, physical printing presses.

[Brett Bellmore]

"How's that" is by the Court deciding its own doctrine is more important than the text of the Constitution.

Look, I think Bondi will easily lose this, because she has no statutory power to do this.

But if Congress decided to give her that power, I wouldn't care to bet on how the Court would rule, because they do let states get away with analogous laws.

[Darwinnie]

What analogous laws?

[Brett Bellmore]

Public accommodation laws.

[Jack Jordan]

Brett, doesn't the law governing accommodations address places to sleep or to reside? Isn't the point to facilitate interstate commerce (including interstate travel) or people moving from one state to another?

[Stupid Government Tricks]

Except John Adams, who threw newspaper editors and publishers in prison just 7 years after the First Amendment was ratified, and the courts said "OK by us".

[Jack Jordan]

SCOTUS, itself, actually didn't say ok. It never was addressed by SCOTUS until New York Times v. Sullivan in 1964. In Sullivan, SCOTUS unanimously concluded that James Madison (opposing the Sedition Act) was clearly correct. They quoted Madison for principles that are controlling here:

"[The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto—a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every [American] right."

Even more important and even more fundamental, in "Republican Government," the "censorial power [generally] is in the people over the Government, and not in the Government over the people." The reason for that rule is profound and profoundly important.

" 'The people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown was sovereign and the people were subjects."

[Jack Jordan]

Brett, the Commerce Clause doesn't apply to every kind of commerce. Congress has the power to make law to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

[Jack Jordan]

Josh, is there any "law which required the printing of a third party's flyer"?

[Josh R]

As Eugene noted, there is no federal law but there are some localities that have such laws. I was merely expressing my opinion that the First Amendment is not a bar to enforcing those laws against Office Depot assuming they refuse to print the flyers without any modifications made by Office Depot.

Assuming (as you do) the freedom of the press clause refers to the technology rather than the press as an industry (Eugene argues that is the case), I would think the press clause is co-extensive with the speech clause. Both protect the right to disseminate or not disseminate information with no extra protection for information produced on a printing press as opposed to a website such as 303 Creative.

As such, if customization was the key in 303 Creative, it is the key in this case as well. But perhaps you know of precedent that gives the printing press (as a technology) extra protection?

[Jack Jordan]

Josh, thank you for that link and for your thoughtful comments.

Please note that I didn't assume or imply that "the freedom of the press clause refers to the technology rather than the press." I said that "the freedom" of "the press" necessarily protected printers because they used printing presses. I'm not saying that in any way limited the scope of the freedom.

I also say (elsewhere) that there's no such thing as a "speech" clause or a "press" clause. Our Constitution expressly expressed one freedom ("the freedom of speech" and "press"). Even the way they wrote it ("the freedom of speech, or of the press") makes clear that it's one freedom that has one meaning regardless of whether the label assigned is "freedom of speech" "freedom of the press" or anything similar (e.g., "liberty of the press").

The freedom at issue encompasses freedom of thought, expression and communication. SCOTUS said pretty nearly the same in 303 Creative.

Also, customization is irrelevant here, and the "freedom" of "the press" secured by the First Amendment necessarily is "a bar to enforcing [any local] laws against Office Depot" as a printer. The Fourteenth Amendment expressly denied any state or local authority any purported power to "make or enforce any law" that "abridge[s any] privileges or immunities of citizens of the United States" or to "any person of life, liberty, or property, without due process of law."

The DOJ must prove it determined the constitutionality of any content-based restriction with “strict scrutiny.” See Reed v. Town of Gilbert, 576 U.S. 155, 163-164 (2015). “Content-based” regulation/punishment is “presumptively unconstitutional.” Reed at 163. See also id. at 163-64 (identifying “content-based” restrictions). Content-based sanctions must “be justified only” by the DOJ “prov[ing] that” its regulation was “narrowly tailored to serve” public “interests” that are “compelling.” Id. at 163.

[Josh R]

In Pruneyard Shopping Center v. Robbins, SCOTUS held that the First Amendment did not trigger strict scrutiny when a California law required Pruneyard to host messages it did not want to (even though the speech compulsion was content based) because the views of the public handing out flyers in the mall would not be construed as being the views of the mall's owners. That conclusion was reaffirmed in Rumsfeld v. FAIR.

I think Office Depot merely printing out a flyer as-is is comparable to those cases. The flyer's views won't be construed as Office Depot's views. On the other hand, if Office Depot customized the flyer, things are different per 303 Creative.

[David Nieporent]

While I think Pruneyard was wrong — and I think there wouldn't be many votes for that decision on today's Court — there was no "speech compulsion" at issue there. The mall wasn't being required to say anything at all. It was only required to allow people who were already lawfully present to speak. And SCOTUS made a point of noting that the mall never claimed that the speakers interfered with its own message in any way.

The flyer's views won't be construed as Office Depot's views.

Again, Tornillo and Wooley suggest that "it won't be perceived as your message" is insufficient to permit compelled speech.

[Josh R]

Pruneyard was a compulsion to host a third-party's speech.

From Rumsfeld, commenting on Tornillo:

The compelled-speech violation in each of our prior cases {JR: including Tornillo}, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate. [...] The compelled-speech violations in Tornillo and Pacific Gas also resulted from interference with a speaker’s desired message. In Tornillo, we recognized that “the compelled printing of a reply … tak[es] up space that could be devoted to other material the newspaper may have preferred to print.

I doubt Office Depot can successfully argue they have a meaningful limit on the customers they serve and endorse the messages of the ones they do serve.

[Jack Jordan]

Josh, I think you have it backwards. Hosting people because people traditionally have had access to such locations is qualitatively different from directly regulating a printer (the press) and requiring a person or business to produce or reproduce content. That's what 303 Creative addressed. It wasn't limited to instances in which someone might think the viewpoint expressed was the creator own viewpoint.

If I operated "Opus Dei Printing" and somebody wanted me to print porn (magazines, photos, whatever) or if I operated "Muslim Brotherhood Printing" and somebody wanted me to print posters of the Prophet Mohammed, could I refuse or could a law make me print it? Would the result be any different if the content was political, e.g., about Charlie Kirk? If so, why?

[Josh R]

In both of your examples, an appeal to freedom of speech is not a defense assuming such a law existed. Perhaps you think that is an absurd result. But, I bet you would agree that if the law required Muslim Brotherhood Limos to accept passengers on their way to a rally to condemn the Prophet, there is no freedom of speech defense. The mere passive printing of a third-party's content is comparable to providing limo service in my opinion.

[Jack Jordan]

Josh, I'm not going to get into transportation of people. Let's not digress with analogies that might not be analogous. Producing or re-producing content is specifically the precise subject of "the freedom of speech" and "press" secured by the First Amendment. Can you state any principle that both establishes and limits any public servant's (purported) power to compel anyone to produce or re-produce content that the person wishes not to produce or re-produce?

Also, the First Amendment's purpose is not merely to provide a "defense." Public servant must affirmatively prove how they “determine[d] the constitutionality of” each content-based “restriction” with “strict scrutiny.” Republican Party v. White, 536 U.S. 765, 774-775 (2002). Accord Reed v. Town of Gilbert, 576 U.S. 155, 163-164 (2015).

“Content-based” regulation is “presumptively unconstitutional.” Reed at 163. See also id. at 163-64 (identifying “content-based” restrictions). Content-based regulation must “be justified only” by government “prov[ing] that” any regulation was “narrowly tailored to serve” public “interests” that are “compelling.” Id. at 163.

[Josh R]

Repeating myself, the principle is customization of expressive content.

[Jack Jordan]

Josh, how did you identify a principle? You didn't. You're merely addressed factual differences. I'm asking you to identify a legal principle that makes you think the government (1) cannot compel someone to create content but (2) can compel someone to reproduce content. You also continue to fail to address the precedent in Gilbert, which I quoted for you repeatedly.

[Josh R]

FFS. As I already posted in this thread, I got it from Dale Carpenter.

And more FFS. I addressed Gilbert in this reply.

[Jack Jordan]

Josh, I think it's also helpful here to apply the logic and language of SCOTUS in Citizens United v. FEC, 558 U.S. 310 (2010).

In Citizens United (and earlier in Bellotti), SCOTUS emphasized that in all relevant respects, the freedom of speech and press is the same for individuals, corporations and media. See id. at 341-347. All public servants are “constitutionally disqualified from dictating” (in the manner the DOJ presumes to do) “the subjects about which” people “may speak” (or print or refuse to speak or print) or which “speakers” may “address a public issue.” Id. at 347. The reasons for that rule are profound and profoundly important.

“Premised on mistrust of [all] governmental power, the First Amendment stands against attempts" by government "to disfavor” (or favor) any “subjects or viewpoints.” Id. at 340. The reason is fundamental and vital: in our “republic” clearly “the people are sovereign” and “the ability” (the power) to speak or print or to refuse to speak or print about public servants and public issues “is essential.” Id. at 339.

In other words, no public servant can compel you or me to say or print or not say or print what we want about Charlie Kirk, so no public servant can compel any corporate printer to do so.

“For these reasons,” expressing or printing (or refusing to express or print) “political speech must prevail against” any purported regulation or punishment “that would suppress it" (or compel it) "whether by design or inadvertence,” so regulation “that burden[s] political speech” is “subject to strict scrutiny,” which “requires the Government to prove” how compelling printing about Charlie Kirk “furthers a compelling interest and is narrowly tailored to achieve that interest.” Id.

[Jack Jordan]

Josh, this is extremely straightforward. Bondi is directly attacking and undermining "the freedom" of "the press" that is directly and expressly secured by the First Amendment. She's pretending or presuming to have the power to directly compel a printer to print. Such functions are clearly within the meaning of "the press" in the First Amendment. In the 1780's people thought of "the press" as meaning, in significant part, physical printing presses.

[David Nieporent]

I still don't see any plausible distinction between the government saying, "You must disseminate the government's message" and the government saying, "You must disseminate a third party's message."

[Josh R]

SCOTUS did in Pruneyard and Rumsfeld.

[David Nieporent]

It did not. That doesn't even make sense as a claim, since one of those was the government's message and one was a third party's message and they both came out the same way.

[Josh R]

Rumsfeld has two separate sections. One (III-A-1) dedicated to compulsions to speak the government's message, and the other (III-A-2) dedicated to a government mandate to host a third-party's speech. As noted in my reply above the second part of the analysis turned on whether the host's message was affected by the speech they were required to host. The fact that Rumsfeld happened to come out the same way as Wooley does not take away from different doctrines applying to the two cases.

[Josh R]

Oops. Rumsfeld came out the same way as Pruneyard. Woolley came out the other way.

Nonetheless, Wooley was decided based on the government-forcing-you-to-speak its message doctrine. Pruneyard, Rumsfeld, Hurley, Tornillo, and Pacific Gas were all decided (with varying results) on the government-forcing-you-to-host-a-third-party's-speech doctrine. To be sure, many (like Eugene) think Wooley ends the inquiry (there is only one doctrine). Others (like Dale) disagree. I think Dale has the better reading of the precedent.

[Ridgeway]

Part of the issue is that Bondi's statements are so idiotic that it is difficult to parse them into something that could make sense.

I'd argue that the govt (state or Federal) could pass a law making it illegal for commercial printers or copy services to discriminate on the basis of their customers' political affiliations or the content of their (otherwise-legal) print/copy requests. And I don't see why the govt would/could not be one of those customers.

OTOH, I have trouble seeing how any govt entity could pass a law saying that an individual or business that does not offer such services to the public in the first place would have to offer such services.

Similarly, the 1A would likely bar requiring even commercial printers/copiers from giving creative assistance over and above the simple printing/copying. So I could go into Kinkos with my flyer for a Charlie Kirk vigil (or a flyer for a Charlie Kirk Dance--a-thon-his-grave hootenanny) and get 1000 copies of made at their advertised rates, regardless of how Kinkos or its employees feels about Kirk. I could not, however, require Kinkos to design the flyer for me, even if they offer that service to others.

[AmosArch]

Im proud that (at least in the places so I visit) conservatives and rightwingers . Even the ones who like to brown nose Trump a bit too much are largely dumping on Bondi over this. Some of us say stupid things from time to time just like the other side I admit but the huge difference is on how the rest would end up reacting and ultimately following through specifically on this matter.

[Sarcastr0]

Even when the admin fucks up indefensibly, MAGA still wins for Amos, thanks to one of those counterfactual huge differences!

[AmosArch]

If a Dem AG started saying they were going to prosecute 'hate crimes' the people on the left would be much more supportive....since you know thats actually their thing? Do you deny this and claim the left as a group are against the concept of hate crimes?

[AmosArch]

hate speech...I mean, not that I'm much a fan of the hate crimes concept either.

[Dr. Ed 2]

Two words: Meritless Garland.

The only difference here is that Bondi's gut the guts to say what she's thinking. Garland, Eric Holder, and Janet (the arsonist) Reno all did worse.

[Sarcastr0]

Amos meets my accusation of relying on hypotheticals with a second hypothetical.

Dude lives in a world of his own making, populated entirely by evil but also dumb legions of identical 'the left' so he can get mad whenever he wants!

[But SkyNet is a Private Company]

They should have had them bake a cake instead

[Sarcastr0]

That goes without saying; cake is delicious.

[Stupid Government Tricks]

Oh look, there's Sarcastr0 again, telepathic marvel of the universe who knows what Amos is thinking.

[Sarcastr0]

Your gimmick sucks.
Responding to what someone wrote isn't telepathy.

[Stupid Government Tricks]

Speaking of gimmicks ...

Dude lives in a world of his own making, populated entirely by evil but also dumb legions of identical 'the left' so he can get mad whenever he wants!

[Sarcastr0]

And if you read the first part of my comment, you will see how I came to that conclusion.

You're pretty tedious, selectively parsing comments so you can get the same dumb attack-line out over and over.

[wvattorney13]

I typically support the Trump administration but Bondi is showing a real lack of knowledge here. I was also disappointed in Bongino when he went on Fox and claimed that if anyone knew about Robinson's plans to assassinate Kirk, but didn't tell anyone, that they would be prosecuted. That simply isn't the law.

[Dr. Ed 2]

An effective leader doesn't need to know facts -- an effective leader has a vision and hires people to implement it.

[Jack Jordan]

Dr. Ed, please see my reply to your original comment, above. Your assertion here might be true somewhere, but it's far from true under our Constitution. Our public servants don't hold their offices to impose their "vision" on us. They hold their offices to support our Constitution.

[David Nieporent]

An effective leader doesn't need to know facts

Well, this is true for janitors.

[Dr. Ed 2]

You have a sick sexual fantasy with janitors.

[David Nieporent]

I'm sorry, but just like all the women who have ever met you, I don't think of you that way.

[Darwinnie]

Again, Steve Martin’s weight guesser in The Jerk. It doesn’t matter if he’s right or not!

[SykesFive]

This is the beginning of wisdom.

[ReaderY]

Of course there’s a basis. It’s the same basis on which many people respond to bogus demand letters. Most people don’t personally know the law and can’t afford a lawyer to check. In addition, the historical credibility of the Attorney General’s office provides an additional basis. Because of this historical credibility it likely simply won’t occur to many people that the Attorney General is bluffing.

Just as there is no federal law requiring printers to print everything they are asked to, there is also no federal law requiring the Attorney General of the United States to tell the truth to the public about what the state of the law is.

The goal of this administration is to induce people to do what it wants them to do. A credible-sounding statement by an authority figure is often an excellent way to do that.

The late philosophy professor Harry G. Frankfurt, in his seminal work On Bullshit, defined bullshit as speech intended to persuade the listener without regard to its truth. The liar cares about the truth and attempts to hide it. But the bullshitter doesn’t care what the truth is, or whether the speech is true or false.

Bullshit, as Professor Frankfurt defined it, is the very currency of the current administration. Speech is judged utterly without regard to its truth, solely by its tendency to persuade listeners.

And this particular speech is very likely to be persuasive.. Attorney General Bondi is an excellent bullshitter. She has real talent for the art. Not as stellar a talent as the President himself. But real talent.

[NvEric]

Bullshit is used extensively by most everyone. The current administration is not different than the last one - get the jab or grandma will die.

[Stupid Government Tricks]

The only real difference between Trump and almost all other politicians is his lack of subterfuge and dissembling. I also call him the most open and transparent President I can think of, but it's kind of a useless feature since he doesn't know what he wants himself and is essentially unpredictable.

TDS sufferers like to pretend he's a literal nazi fascist just because it's easy to pretend their Presidents Biden and Obama and Clinton hid their foibles, sort of, while Trump brags about his. But Trump hasn't raped interns, his wife hasn't lied to cover up his rapes and accuse his victims, he hasn't pretended his pen and phone were excuses, and his staff hasn't covered up his senility.

[Brett Bellmore]

"since he doesn't know what he wants himself and is essentially unpredictable."

I think it's actually more the case that he wants multiple things, which to some degree conflict, and he switches between them opportunistically as the situation shifts, rather than consistently pursuing some subset of them.

[apedad]

Let me translate Brett for everyone.

"Trump is a reactionary, clueless idiot and simply responds to whatever real or perceived red ball happens to be bouncing in front of his nose."

[Brett Bellmore]

I suppose translating from English to idiot IS a service, albeit a not terribly valuable one.

[Stupid Government Tricks]

Someone who wants everything, or at least multiple conflicting things, wants nothing.

[Brett Bellmore]

Everybody wants multiple conflicting things. Otherwise "opportunity costs" wouldn't be a thing in economics.

[ReaderY]

Got it.

Are you aware that your speech itself, the very venom with which you denounce critics of Trump, provides very strong evidence supporting comparison to leaders of regimes whose followers were similarly venemous in their denunciations?

Sometimes a hostile witness, particularly one whose venom has become so pervasive as to poison capacity for self-awareness and self-reflection, provides the best possible evidence for the other side that can be had.

[Jack Jordan]

ReaderY, don't be so sure there's "no federal law requiring the Attorney General of the United States to tell the truth to the public about what the state of the law is."

It is a federal offense for any person to act “under” mere “color of any” legal authority or mere “custom” to “willfully” deprive "any person" of "any rights, privileges, or immunities secured or protected by the Constitution” or federal “laws” (18 U.S.C. § 242) or to “conspire” with anyone to “injure, oppress, threaten, or intimidate any person” in "the free exercise or enjoyment of any right or privilege secured to” such person “by the Constitution” or federal “laws” or because such person “exercised” such “right or privilege” (18 U.S.C. § 241).

[ReaderY]

Can you identity who you think is going to prosecute Pam Bondi or is otherwise realistically likely to impose consequences on her over this? Didn’t think so. So just substitute “no consequences” for “no law” and the result with the substitution is otherwise pretty much identical.

And you’re right to call out my mistake. I should have said “no consequences” from the beginning. In the absence of consequences, law becomes as completely irrelevant to behavior as truth.

[steve sturm]

1, NAL, am I reading the post properly, in that there’s no federal law banning discrimination by a retailer on the basis of a (potential) customer’s race or sex?

2, it is sad that an AG either doesn’t know the law or does know the law and makes threats like these anyway.

[Eugene Volokh]

As to 1, that's right. The Civil Rights Act of 1964 doesn't ban sex discrimination in places of public accommodations at all, and bans discrimination based on race, religion, and national origin only in certain categories of places -- not including most retailers. Almost all states, however, do ban race and sex discrimination in places of public accommodation, and my sense is that the great bulk of them do indeed cover most retailers.

[Dr. Ed 2]

Hostile environment isn't in the statute, it was created by judicial fiat.

How is that different from what Bondi is attempting to do?

[Brett Bellmore]

Well, for one thing, Bondi isn't a judge. And judges seem to care about that sort of thing.

[David Nieporent]

And judges seem to care about that sort of thing.

Yes; it is emphatically the province and duty of the judicial department to say what the law is. (But Dr. Ed, of course, is wrong.)

[Jack Jordan]

Dr. Ed, the great distinction here is that Bondi is directly attacking and undermining "the freedom" of "the press" directly and expressly secured by the First Amendment. She's pretending or presuming to have the power to directly compel businesses to print. Such functions are clearly within the meaning of "the press" in the First Amendment. In the 1780's people thought of "the press" as meaning, in significant part, physical printing presses.

[ReaderY]

Professor Volokh,

As I recall it came from an era when there were still perceived to be limits on the federal commerce power. The categories generally speaking distinguish between businesses thought especially likely to serve travellers passing through or otherwise to have a more direct connection with interstate commerce than is thought necessary today, like restaurants and hotels, and other businesses.

[JoeFromtheBronx]

Civil Rights Act of 1964 does ban an employer discriminating by sex.

[BrotherMovesOn]

EV, as to his #2?

[Eugene Volokh]

People can draw their own inferences from the analysis in my post. It's my job to tell you folks what the law is; whether you should be sad about a public official's actions or mental state I (usually) leave to you folks.

[Martinned2]

That’s alright then. No legal basis, nothing to worry about, carry on.

[Dr. Ed 2]

" It also bans discrimination based on disability, but that's not applicable here either."

Death is a disability.

[David Nieporent]

It isn't, but also I'm pretty sure that the customer was not in fact dead when he went into the store.

[Brett Bellmore]

Bondi doesn't even know when to just take the win. She has to generate sympathy for a louse, instead.

The prosecution would have no federal basis I can think of, but a state could, conceivably, enact a law criminalizing it, and probably get away with it, public accommodation laws being at about Stage 4 at this point.

[Stephen Lathrop]

Bondi's conduct is constitutionally offensive. If the Ds had sufficient control of Congress, the right remedy would be to impeach Bondi, and remove her from office.

Bondi's threat to prosecute for failure to support the R political agenda is on point with, "high crimes and misdemeanors." That term, by which so many pronounce themselves mystified, ought to be understood properly as grave offenses against constitutional order, whether knowingly or recklessly committed. To make it a criminal offense to withhold support from the Executive's political advocacy ranks among maximally serious offenses against American constitutionalism.

Bondi has repeatedly demonstrated herself not merely incompetent, but constitutionally abusive. And most specifically, she is in violation of her oath of office.

But alas, the impeachment remedy is not available for political reasons everyone understands. That exposes a long-standing flaw in American constitutionalism. The question whether a constitutionally abusive administration official can be removed should not be answered, "yes," in one instance, and, "no," in another instance, with the distinction depending on political happenstance. But continuation in office for an official in violation of an oath required to hold the office also ought not happen, simply because the impeachment power is a practical impossibility when it is needed.

As a guide to resolve that dilemma, the emphasis in such cases ought to be more on the imputation of, "crimes," than on politics. There is no proper constitutional license to commit constitutional offenses under any political circumstance. And although constitutional offenses are not always violations of criminal law, they remain crimes against the Constitution.

So what should happen in Bondi's case? There is a risk that to leave her constitutional abuses unaddressed will afterwards invite repetitions of like offenses, justified as precedented or even customary. What to do to prevent that I have mentioned before, without winning encouragement in these comments—some invective, but little sign of support. I think Bondi's example warrants rewriting my arguments, and hazarding that response again.

Federal grand juries are tribunes of the jointly sovereign People of the United States. They are not part of any branch of government. They enjoy independent powers of investigation. By long-standing (but lately little-used) precedent, Federal grand juries can hand down not only indictments in response to prosecutorial requests, but presentments, charging at the grand jury's own initiative persons they have investigated.

A question Bondi's case now occasions is what limits might there be on such presentments. I think a federal grand jury, acting on its own initiative, ought to announce itself the constitutionally proper authority to say whether a question of oath-keeping exists. The argument should be that government prosecutors are ill-placed to judge dispassionately whether their own oath keeping is properly satisfactory to the People who required their oaths. A federal grand jury is in a better position to do so. It represents the People directly, is not a prosecutor, and thus remains beyond the scope of government control, rebuke, or retaliation.

And if a federal grand jury says a question of oath keeping does exist, then a petit jury ought to be empaneled to try the case to a conclusion, with the verdict being either an oath kept faithfully, or an oath violated. Because the question tried would be confined to fidelity to the oath itself, no criminal penalties would be appropriate. But a penalty of removal from office would be.

It seems reasonable that if an oath to support and defend the Constitution has been required by the People as a precondition of service, then violation of that oath during service ought to be a bar to continuance in office. And it seems likewise reasonable that only properly constituted representatives of the People themselves are qualified to say—as they do in criminal matters—whether they are satisfied on the basis of evidence with conformance to legal requirements ultimately imposed by the Constitution.

Of course I understand that this nation's present Supreme Court would oppose any such grand jury actions, and likely pronounce them legal anathema. Just as I think many commenters here would also do. Those accustomed to free rein in the administration of legal power will prove sensitive, and inclined to guard their own prerogatives, whether or not doing so is proper, wise, or good for the nation. On the basis of present evidence, quite a bit has been happening that is not proper, wise, or good for the nation.

As for the commenters, so what? They have been sworn to nothing.

Not so for Supreme Court justices. I think it might do the justices good to hear from a federal grand jury that their own performances of their oaths are subject to review. To learn that the People themselves enjoy power to review how well the justices performed their pledges of fealty to the People's Constitution.

I think it should be customary principle that the entire oath-sworn government apparatus is subject to review on the basis of performance satisfactory to the People—save only the President and Vice President themselves. American constitutionalism is structured to make the President and Vice President unique, on the basis of prior approval from all voting citizens. No other oath-sworn members of government get vetted so imposingly.

For the President and the Vice President, impeachment thus ought to remain the only means of removal from office. Their power to continue in corruption—if that were their intent—would in any case be much diminished, if their subordinates and other political allies in government were actually required to abide by their oaths.

I also get that many who comment here will quickly retort that what I suggest is a constitutional violation. But that is nonsense—an especially commonplace kind of nonsense from political observers of whom the founder James Wilson observed:

Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions . . . This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people.

This nation's current political crisis demonstrates what hazards ensue if the People themselves are not continuously and effectually the unappealable power at the apex of government. That, as Wilson insisted, is the true basis of American constitutionalism. It provides a complete answer—a slash to the Gordian Knot—to any who posit a Constitutional power which somehow, paradoxically, step-by-formalistic-step, leads to the replacement of the People's sovereignty by a rival wielding government power against the People themselves.

[Jack Jordan]

Stephen, it is true that "supreme" power "remains in the people," but it is clearly untrue that "that in our governments" somehow "absolute, and uncontrollable power remains in the people."

Justice Wilson, himself, emphasized in Chisholm v. Georgia the existence of "many" "volumes of confusion concerning sovereignty." Those volumes of confusion concerning sovereignty included Wilson's prior words about the fictitious "absolute, and uncontrollable power" of "the people."

The primary problem with the presumption or pretense that any part of our Constitution somehow reserved all the powers of government to the People is that it would place every temporary majority entirely above the law (including the restraints in our Constitution). It would make them legislators, executives and judges of everything. That is exactly what all the founders expressly opposed vehemently.

They opposed and prevented such concentration of power in the text of our Constitution (using 3 articles to separate powers into 3 departments). They opposed such concentration of power in their representations regarding and explanations of our Constitution. In The Federalist No. 47, for example, James Madison emphasized even more than the following:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.” “[T]the preservation of liberty requires that the three great departments of power should be separate and distinct.”

Article V emphasized the only ways our Constitution can be amended. The Tenth Amendment emphasized that limited “powers” were “delegated to the United States by the Constitution” or "reserved to the States respectively" so those powers clearly were not “powers” that were “reserved” to “the people.” As an example, Article III emphasizes that federal judges "shall hold their Offices during good Behaviour." They can be removed for behavior that is not good, but they cannot be removed merely because the People have some purported "absolute, and uncontrollable power."

[Stephen Lathrop]

Those volumes of confusion concerning sovereignty included Wilson's prior words about the fictitious "absolute, and uncontrollable power" of "the people.?

Jack Jordan — Am I to take that to mean you insist Wilson later repudiated his explicit explanation made at the time of the Constitutional Convention? If so, I assume you have something more to show it than your distaste for what you, but not Wilson, said would happen. Where does Wilson say what you said?

But also, you suppose, I think mistakenly, that Wilson was content to subordinate joint popular sovereignty to Constitutional supremacy. If that makes sense to you, what do you make of this from Wilson:

As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right. The consequence is, the people may change constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them

Note that the positive institution Wilson references is the U.S. Constitution. Note also, "whenever and however they please," is Wilson saying the amendment provisions in the U.S. Constitution do not constrain the jointly sovereign People, but only the government.

I do not know how old you are. Your views on limited government, shaded away from politically traditional ideas of what sovereignty implies, were pretty standard fare in civics classes in the mid-to-late 20th century. Most commenters who talk about constitutional issues on this blog show signs of that influence.

Obviously, James Wilson was not trained in a modern civics class. His political theory he learned in Scotland. Based on his advocacy, I suggest his views on sovereignty owe a debt to Hobbes. But certainly not to Leviathan taken straight, which was pro-royalist. Wilson was anti-royalist.

What Wilson did, I think, was to adapt Hobbesian views on royalist sovereignty to fit a new notion of joint popular sovereignty, largely of his own creation. That proved influential among the pro-federalist founders, and resulted in a Constitution and constitutional theory structured to match the new idea.

I may be wrong about all of that, but you will not convince me I am wrong by reciting civics class pieties. Show me text from Wilson which is plainly inconsistent with my interpretation.

[Jack Jordan]

Stephen, you need to look first and foremost at the text of our Constitution. You cannot merely read theory and assume our Constitution reflects it. Our Constitution clearly does not reflect what you focused on that Wilson wrote.

As I explained (in the comment to which you replied) it's obviously false that "the people may change constitutions whenever and however they please." A mass of people cannot just change our Constitution. The process to amend the Constitution back then took years. Just look at Articles V and VII. Look at state laws governing elections. Wilson was just obviously wrong about the foregoing which is an aspect of his false assertion about the people having "absolute" and "uncontrollable power." That's an absurd falsehood. Just look at our Constitution. It's strikingly obvious.

I think Wilson said those things because he was old and for decades that was the way Americans spoke about Parliament's supremacy and sovereignty. After the war was over, people continued to think the same way about sovereignty, but some people in some states assumed that state legislatures were sovereign. Our Constitution clearly made the people sovereign for everyone in every state. Wilson continued to say the same old things about the absolute nature of sovereign power even though they were obviously false.

I looked at the Constitution's text, structure and history and then I looked for insights that shed light on the text and structure. Wilson offered very valuable insights regarding how to understand the Preamble. But the reason (I think) that people don't talk much about Wilson today is that they make the same mistake as you're making now. They focus too much on the language with which Wilson clearly went astray. You continue to follow Wilson even when he's obviously wrong. Others (I think) just dismiss Wilson entirely because they see was wrong about the nature of the power of the people. That all-or-nothing approach is plainly wrong. Wilson offered crucial insights.

There's no reason to care whether or where Wilson said he changed his mind. Maybe he did. Maybe he didn't. I'm not writing about Wilson. I'm writing about our Constitution. Wilson simply hadn't caught up to Madison in realizing that an absolute, self-evident truth was expressed by Montesquieu, and it was believed by many people of their time and it was reflected in our Constitution's separation of powers. Madison, not Wilson, has proved to be the best guide generally.

Consider what Madison wrote. In multiple Federalist Papers Madison wrote about how power was divided and allocated to preserve the liberty of the people. Did you read The Federalist No. 47? As I said, Madison said more there than I quoted. Here's some more:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many [is] the very definition of tyranny. . . . [T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. . . . Montesquieu [was famous for] saying ‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.”

[Jack Jordan]

Stephen, did you actually look at Chisholm v. Georgia? You need to actually read it for more than anything I've quoted for you. Multiple people addressed sovereignty, including Chief Justice John Jay and Edmond Randolph (Chisholm's counsel). In Chisholm. Wilson said nothing about the people having absolute, uncontrollable power. He used that expression twice.

Notice the words despotic, usurped and arbitrary:

"Even in almost every nation, which has been denominated free, the State has assumed a supercilious preeminence above the people, who have formed it: Hence the haughty notions of State independence, State Sovereignty and State Supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the State and the people: Hence all arbitrary doctrines and pretentions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the State as well as the man is degraded."

Notice the word despotic:

"As described by [Blackstone] and them, the British is a despotic Government. It is a Government without a people. In that Government, as so described, the Sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere."

[Stephen Lathrop]

Jack Jordan — I am as mindful of Madison and Montesquieu as you are. For the life of me, I cannot understand what you think their critiques of government have to do with Wilson's insights into sovereignty. In 18th century thinking, government and sovereignty were distinctive and interacting philosophical questions—they persisted through countless controversies as rival entanglements, which obstructed clear thinking about governance.

They were nothing like the sovereign/government mash-up that modern advocates of decapitated constitutionalism struggle with today. You are among those struggling.

Not that it matters much what you or I think on these questions. The only reason to care is to get right what happened in the past.

In the mind of the founders, first questions came first, and the very first question on their agenda was how do governments and the nations they control come to be? And the next question was, what differences might open to view if that question were considered anew?

Those were foundational questions which presumed existence of both a polity and a source of authority, and little else. They certainly did not rely on a notion that any particular right way to organize government authority was known. They came from, and were part of, a culture which had for about two centuries been roiled by that uncertainty. They began to think that over. The startling outcome of that rumination was expressed in three pivotal words, almost certainly authored by Wilson: "We the People."

Where in American civics education do you find any coherent account of all that struggle and thought? Nowhere, because the civics class method has been to start much later, with consideration of an already-evolved system of constitutionalism—basically the post-Civil War system—and reason from there about how to justify that system to a populace presumed in need of instruction in loyalty.

If you learned that as gospel while you were young, it can be hard to shake it off later, unless you do something very few people even attempt. You have to study widely among original records—mostly the earlier ones leading up to the founding era—with an eye to read them for only the notions expressed then. You must exclude from that study every consideration of related-looking stuff your upbringing made you confident about. Almost all of that was stuff which the founders' era could not consider at all, because it lay entirely in their unknowable future.

If you are capable to do that, you will be treated to a parade of surprises. Because you will have a ringside seat to encounter those surprises through the reactions of those who experienced them first. Do that long enough, and you will come to recognize as discordant any errant presumptions from the present which sometimes intrude.

That is the point of view I try to apply to your commentary. And when I do, it is striking, obvious, and egregious that you interpret historical outcomes on constitutionalism—outcomes which percolated for almost two centuries before they got to you—as the first principles of American governance. You are looking at a long-evolving effect, and mistaking it for a first cause. That is why every paragraph you write presumes—arbitrarily and incongruously from the point of view of the past—the Constitution as the only proper source of US governmental authority. Demonstrably, none of the founders thought that way about it at the Constitutional Convention. For them, the Constitution was a constraint on government, and empowered government, but by use of an authority which lay elsewhere

To study anew American governance's point of beginning was Wilson's focus, and his principal contribution. It seems to have been Wilson who best understood that a notion of vindication for personal rights could not be reconciled with a government destined, as all governments had always been, to be the customary abuser of those rights.

It was Wilson who posited that the notion of sovereignty, if devolved jointly to the People, could continuously provide a force greater than government's force, and thus vindicate those rights. But to do that, the joint popular sovereign would have to be continuously active, and continuously imposing to government.

That is what the Wilson quotes I so often return to explain to modern readers who know less than they suppose about where modern governance came from, and how it evolved. Sometimes I think that evolution has gone in mistaken or inconvenient directions.

From time-to-time I mention that. Unlike would-be originalists, I do not insist that there is any kind of past with a valid claim to present priority. But sometimes I try to let things which happened, seen in the contexts in which they occurred, speak anew for themselves in present context.

Skepticism tending toward hostility is a result I have become familiar with. I take it you have given similar questions thought, and reached different conclusions. I respect your serious intent, and thank you for it.

[Jack Jordan]

Ok, Stephen. I'll leave you to it. If you cannot understand what I've given you, I'm not going to waste my time on this. I think you're not even bothering to read any relevant sources or at least not even bothering to think about what they mean.

You're obviously not as mindful of Madison and Montesquieu as I am. You're quoting Wilson and presuming that Wilson's words somehow mean more than even the text and structure of our Constitution. The Constitution's text and structure reflect the thoughts expressed by Madison and Montesquieu about how to limit power. Nothing about our Constitution says anything even remotely like "the people have absolute and uncontrollable power." This should be extremely obvious to you. So if you can't see that, I'm not going to waste my time with this. If you cannot see how wrong you are, then I've already wasted far too much of my time.

But since I have spent so much time trying to help you see what you're missing, please help me understand something. What is your purpose? Why are you writing about these things?

Are you interested only in an academic discussion about history? Or are you trying to understand our Constitution? I'm interested primarily in the latter. I'm interested in the former only to the extent that it helps me understand our Constitution or the thoughts and sentiments that influenced it.

[Jack Jordan]

Stephen, you write like you think you know what you're talking about. So show us. Please show us the text and structure of our Constitution that supports your presumption that Wilson was correct that our Constitution establishes or secures "absolute, and uncontrollable power" of "the people."

Show us how the text and structure of our Constitution supports your presumption that Wilson was correct that "the people may change constitutions whenever and however they please."

By what process precisely do you think Wilson thought the people could actually change our Constitution?

[Jack Jordan]

Stephen, you're viewing Wilson's statements backwards. Wilson said the things you highlighted (about "absolute, and uncontrollable power" of "the people" and "the people may change constitutions whenever and however they please") solely to support and defend our Constitution, not contradict our Constitution.

First, Wilson's words disposed of the objection that the Constitution, itself, was illegal. People did object that our Constitution was illegal (and, if I recall correctly, even that it constituted treason) because the Articles of Confederation said that they created a "perpetual Union" and "the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards con-firmed by the legislatures of every state."

Second, Wilson's words also were supporting and defending our Constitution (and its ratification) to emphasize merely that it COULD be amended. Wilson (and Madison) emphasized that our Constitution could be amended much more easily than the Articles of Confederation (which required unanimous agreement of all states, so any one state could veto changes). They did so, in part, because people objected to ratification of our Constitution on the grounds that it wasn't perfect. People especially objected to the fact that it failed to include a bill of rights.

Third, Wilson's words also were widely understood at the time as explaining why we really don't need a bill of rights to protect the people. The people, themselves, were sovereign. As Madison also emphasized repeatedly, the past practice (e.g., in England) was to write a bill of rights (or the Magna Carta) to protect people from the monarch. So (they wrongly argued) a bill of rights wasn't needed to protect the people from themselves. Madison later readily acknowledged that the bill of rights actually was necessary to restrain the power of any temporary majority (of the people) to oppress any minority. Madison even wrote about this problem in The Federalist Papers.

[Jack Jordan]

Stephen, you need to actually do what you said you already did. Read and think about what Madison wrote in the Federalist Papers about power, people, party, faction, abuse of power, usurpations of power and human nature. Read Madison's Virginia Report of 1800. Madison very clearly was not merely wasting time critiquing government. He obviously (and expressly) devoted considerable thought and effort to explaining to people how to read and understand our Constitution.

You say "every paragraph [I] write [merely] presumes—arbitrarily and incongruously from the point of view of the past—the Constitution as the only proper source of US governmental authority. Demonstrably, none of the founders thought that way about it at the Constitutional Convention. For them, the Constitution was a constraint on government, and empowered government, but by use of an authority which lay elsewhere."

You are so obviously wrong that it is astonishing. When people say things like that, I have learned it means they just don't want to think. Your words prove that you're really just wasting my time.

I rely primarily on Wilson, Madison, Montesquieu, Locke, John Adams, Alexander Hamilton, Thomas Jefferson, John Dickinson the Declaration of Independence and the May 1776 Resolution and Preamble, state constitutions and Blackstone. I think about what they thought.

You're obviously completely wrong that the "very first question on their agenda was how do governments and the nations they control come to be." Their primary and constant concern was how to design a SOCIETY. The focused on designing government to serve solely to secure and promote the safety and happiness of SOCIETY. Actually do what you said you already did. Read Madison in The Federalist Papers about the subjects I mentioned in the first paragraph of this comment.

[Jack Jordan]

Stephen, I've asked before, but you haven't answered: why do you use the expression "joint popular sovereign"? What purpose does "joint" serve?

As I already said yesterday, Wilson's view of sovereignty (i.e., re: absolute, uncontrollable power) clearly merely wrongly perpetuated the perspective of the past. It perpetuated a notion of sovereignty that everyone else (and even Wilson, himself) expressly rejected with our Constitution. As I highlighted yesterday, in Chisholm even Wilson expressly accentuated how the past perspective about sovereignty (absolute, uncontrollable power) necessarily resulted in despotic, arbitrary government. That is what EVERYONE wanted to prevent. That is what Madison wrote about repeatedly. That is the purpose of the impressively complicated design of our Constitution.

To be candid, you write like a religious fanatic who thinks some religious authority is superior to the authority of our Constitution in some relevant respect. Is that what you think? You also write like the people who think the Second Amendment somehow secures a right of revolution by means of violence. Is that what you think?

[Stephen Lathrop]

Jack Jordan — I use, "joint popular sovereignty," for a twofold reason. First, it accurately reflects the two-fold character of American citizenship intended in the late 18th century. An American citizen was intended to be individually a subject of government, but acting jointly with others the sovereign masters of government.

Second, when I use the term that way it wards off nutcases who might stupidly conclude I advocate the lunacy of the modern sovereign citizens movement. I oppose that, of course.

You wrote one other thing worth answering:

You also write like the people who think the Second Amendment somehow secures a right of revolution by means of violence. Is that what you think?

My answer is no, but for a reason you seem to have trouble comprehending. Like so many who comment on governance and public affairs, you toss around the term, "right," too loosely. You use it even when the term, "power," is the accurate choice. You did that in your question I am responding to. Thus, revolution is not a right in the US. The US Constitution forbids such an effort. But that does not dispose of the question.

A revolution won proves power, and perhaps an ability to rule, if the masters of the revolution succeed in that ambition. It is demonstrated capacity to rule at pleasure, and without constraint, which establishes sovereignty. Sovereignty is not conferred by right, nor by consent, nor by God. The test of a sovereign is its capacity to wield force sufficient to defeat challenge, and perhaps force sufficient to cow in advance any incipient challenges.

That, however, is a test of sovereignty only. It is not a test of sovereign legitimacy. The test of sovereign legitimacy is the willingness of people subject to that sovereign's rule to support its continuance in power, instead of opposing it, or supporting a challenger. A wise sovereign therefore takes pains to provide subjects with a legitimate government pleasing to the subjects. The test of government legitimacy is its faithful conformance to its sovereign's decrees.

Thus, in the US, the Constitution is the decree of the joint popular sovereign. That sovereign won power by revolution, and continues in power if it can by its decree to empower and constrain a government pleasing to the citizens subject to the sovereign's rule—which in a twist astonishing to the world when it happened—turned out to be, at least in principle, themselves.

For that world-altering innovation, citizens of many nations today owe a debt of gratitude to James Wilson. He seems to have been an initial and successful advocate of setting up systems of governance in that style. It had the effect to much reduce conflicts of interest inherent in older systems which put a personal sovereign over citizens whose interests the sovereign might not share personally, or might even be inclined to oppose. Citizens sovereign over themselves are not proof against such hazards—especially if they are riven by factions—but on the whole identity of interests between sovereigns and citizens is the sunnier prospect.

Hence, the answer to your questions about what in the Constitution shows conformance to Wilson's advocacy: the general answer is, "all of it," and a more specific answer is, "We the People."

And by the way, didn't I already recommend to you historian Edmund Morgan's magisterial book: Inventing the People: The Rise of Popular Sovereignty in England and America? You really ought to read it, to get up to speed on all the history which lies behind the Constitution.

[Jack Jordan]

Stephen, once again, you write without thinking. Obviously, I wasn't, personally, using the word "right" to express my thoughts, I was asking if you thought what those people thought.

To my question, your thought was: "Like so many who comment on governance and public affairs, you toss around the term, "right," too loosely. You use it even when the term, "power," is the accurate choice. You did that in your question I am responding to."

[Jack Jordan]

Stephen, you are proving the truism that a little knowledge is a dangerous thing. You are proving you cannot grasp (or you will knowingly misrepresent) the plain truth when it's handed to you in plain English. Obviously and irrefutably, the following from you is false: "It is demonstrated capacity to rule at pleasure, and without constraint, which establishes sovereignty."

You obviously previously thought that Wilson thought that about the nature of the sovereignty of the people under our Constitution, but I already explained that's not what he thought.

In 1793 in Chisholm Wilson proved Wilson did not think the sovereignty of the people means what you say it means. Wilson and two other people (Chief Justice Jay and Randolph) expressly emphasized that our Constitution established the sovereignty of the People. But none of them wrote to support such sovereignty by reasserting anything like the language you invoked. But Wilson did use that very language to prove that Parliament and state governments were despotic and arbitrary. Do you think Wilson advocate despotic and arbitrary power of some temporary majority of the people? If so, why do you think that?

As you acknowledged, Wilson asserted the statements you invoked promptly after Wilson helped write our Constitution. Even more importantly, Wilson wrote those words (and otherwise worked) to help cause our Constitution to be ratified. It makes no sense at all for you to continue to think Wilson asserted what he did to contradict our Constitution. What facts or principles make you think that Wilson asserted what he did to contradict our Constitution?

At this point, it would be fair to say you're lying about Wilson's meaning--unless you show me something that leads you to sincerely believe that Wilson wrote those words to contradict our Constitution.

[Jack Jordan]

Stephen,

I wrote, "To be candid, you write like a religious fanatic who thinks some religious authority is superior to the authority of our Constitution in some relevant respect. Is that what you think? You also write like the people who think the Second Amendment somehow secures a right of revolution by means of violence. Is that what you think?"

You responded to my second question, but not to my first question. Why did you not respond to my first question? Do you think some authority is superior to the authority of our Constitution in some relevant respect? If so, what authority and how do you think it is superior to our Constitution in a relevant respect?

[Jack Jordan]

Stephen, you're also obviously wrong regarding your first reason for using the expression "joint popular sovereignty." That expression clearly doesn't "accurately" reflect the "character of American citizenship intended in the late 18th century."

You're not even correct that each "citizen was intended to be individually a subject of government." Each citizen is governed by what our Constitution says governs us, i.e., the supreme law of the land. Everything that governs us does so under the supreme law of the land.

Our sovereignty also clearly and irrefutably is not limited to "acting jointly with others the sovereign masters of government." The correct way to think about the First Amendment (as, e.g., Wilson, Madison Jefferson, Washington, Hamilton thought about it) is as securing the freedom of thought, expression, communication, association and assembly of sovereign citizens. Clearly, the foregoing include the individual right, power and duty of citizens to exercise such freedoms and powers to choose or remove (vote for or against, seek impeachment and removal, seek criminal prosecution) and praise or criticize our public servants. I'm pretty sure I showed you where Montesquieu and Madison (and SCOTUS in New York Times Co. v. Sullivan, Garrison v. Louisiana, Citizens United, Alden v. Maine, and the Arizona decision) said pretty much exactly that.

[Jack Jordan]

Stephen, you also failed to respond to my request for information supporting your position:

Show us how the text and structure of our Constitution supports your presumption that Wilson was correct that "the people may change constitutions whenever and however they please."

By what process precisely do you think Wilson thought the people could actually change our Constitution?

[Jack Jordan]

Stephen, you need to research and learn much more about what Madison, Washington, Ben Franklin, John Adams, Benjamin Rush, James Wilson, Thomas Jefferson and Alexander Hamilton said and did with respect to education and civic duty and virtue.

You wrote: "Where in American civics education do you find any coherent account of all that struggle and thought? Nowhere, because the civics class method has been to start much later, with consideration of an already-evolved system of constitutionalism—basically the post-Civil War system—and reason from there about how to justify that system to a populace presumed in need of instruction in loyalty."

The people I mentioned (and others) clearly did not focus on "instruction in [mere] loyalty." Very great parts of their lives were dedicated to educating themselves and others about how to create and participate in a society that would be strong and self-sufficient, even revolutionary.

Madison, for example, famously emphasized: "A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both."

Hamilton similarly emphasized in The Federalist No. 70 that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.”

In 1774, the First Continental Congress declared “five great rights” of all American citizens. That august assemblage included some of the brightest stars, not only of the American Revolution, but also of the future new government under our Constitution starting in 1789. They included our first two presidents, George Washington and John Adams, and our first SCOTUS Chief Justice, John Jay (each of whom also was a member of the Second Continental Congress).

One of the “great rights” they declared was “the freedom of the press.” That great right helps illustrate the great truth in our Declaration of Independence that “all” citizens are “equal.” Fortunately, the 1774 Congress did more than merely write that right. They emphasized its meaning and power:

The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

Later, Jefferson was even more graphic. His words are well worth bearing in mind when we think about how our Constitution was written and ratified to prevent abuses of power such as we are seeing today. The people of the founding generations (including those who wrote or ratified our Constitution and Bill of Rights) did not trust people with power. They did not trust even each other. As Jefferson shows, many knew better than to trust even themselves. That is why, Jefferson emphasized, the First Amendment expressly secures "the freedom of speech" and "press." That freedom (flowing from the sovereignty of the people) necessarily includes the power to vote and to criticize any public servant's public service.

"The people are the only censors of their governors: and even their errors will tend to keep [public servants] to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty. The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people."

The most important principle in our Constitution and in state constitutions is that "[t]he basis of our governments" is "the opinion" (consent (i.e., speech, including votes)) "of the people," so "the very first object" all public servants "should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

The truth about people in power is that "under pretence of governing" many public officials "have divided" people "into two classes, wolves and sheep. I do not exaggerate. This is a true picture[, for example,] of Europe. Cherish therefore the spirit of our people, and keep alive their attention. Do not be too severe upon their errors, but reclaim them by enlightening them. If once [the people] become inattentive to the public affairs, you and I, and Congress, and Assemblies, judges and governors shall all become wolves. It seems to be the law of our general nature, in spite of individual exceptions; and experience declares that man is the only animal which devours his own kind, for I can apply no milder term to [some so-called] governments [ ], and to the general prey of the rich on the poor."

[Stephen Lathrop]

Jack Jordan — You have done a good job with review of standard sources. And I applaud your method to cite them for the benefit of so many commenters here who keep nothing in mind but personal preferences.

But please, don't overdo erudition. You might someday encounter someone who has read a great deal more than you have, and made better use of it. Edmund Morgan, whom I commended to your attention above, was one such. Given your overlapping interests, you could do worse than reading everything he published.

[Jack Jordan]

Stephen, I expect and hope to encounter people who've read more and thought more about what I write. I know Professor Volokh has done so. That's the primary reason I write--in the hope that someone will show me how to think better. That's the same courtesy I'm extending to you.

I assume that you've read a lot. So it seems to me that you're proving that reading widely is far from thinking deeply. You constantly prove that you're not thinking more than extremely superficially about the issues we're discussing. To be candid, I would not be at all surprised to learn that AI wrote what you've posted.

Your writing offers far more volume than value. You might make your writing much more succinct if you didn't presume to tell me what you think about my education or lack of education. Just say (as succinctly as possible, please) what you think supports your own thoughts.

[Jack Jordan]

Stephen, I posted additional related info on Reason under the articles:

New on NRO: "This Constitution Day, Celebrate the Triumph of Originalism"

Today in Supreme Court History: September 17, 1787

See also my comments above re: New York Times v. Sullivan and Citizens United.

[Krenn]

Portage Office Depot is listed as being part of the Southland Mall, and I think the law has a weird clause saying that subordinate stores within larger stores that qualify as public accommodations also qualify as public accommodations. No idea how that applies to strip malls, but someone's bound to try the argument eventually that if one store in the mall qualifies, then all stores do.

Also, I THINK there's a law stating that attempting to deny a specific person equal access to public accommodations through intimidation or unlawful actions is illegal, regardless of whether or not the person belongs to a protected class.

So technically if the employee had gone beyond just refusing to print the flyer, and had instead tried to throw the customer out of the entire mall, that might hypothetically be a federal crime.

[River]

As I recall the hypothetical that somehow became the actual 303 Creative v. Elenis case, it very specifically involved the business creating personalized websites for each hypothetical marriage, and the court's reasoning hinged on this aspect which it saw as creative and therefor speech. Office Depot just photo copies things. There is no creativity involved there, even by the broad understanding of creativity that the court used in 303 Creative v. Elenis. So 303 Creative v. Elenis would not apply, and I would argue there would be no free speech violation.

That said, as far as I know, this post is correct that there simply is no applicable federal statute for DOJ to enforce, and for that reason there can be no prosecution.

[Brett Bellmore]

That was my conclusion above: That there wasn't any statutory basis for her to do this, but if Congress provided her with one, under current commercial speech and commerce clause doctrine it would probably survive.

I think current commercial speech and commerce clause doctrine is a steaming heap, of course. Doesn't mean I don't know what it is...

[Jack Jordan]

River, this is extremely straightforward, and no statute could possible control. This is controlled directly and expressly by our Constitution. As SCOTUS unanimously concluded (quoting James Madison opposing the Sedition Act of 1798) in New York Times v. Sullivan in 1964:

"[The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto." For starters, the freedom of speech and press is "the only effectual guardian of every [American] right."

Even more important and even more fundamental, in "Republican Government," the "censorial power [generally] is in the people over the Government, and not in the Government over the people." The reason for that rule is profound and profoundly important.

" 'The people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown was sovereign and the people were subjects."

Bondi is directly attacking and undermining "the freedom" of "the press" that is directly and expressly secured by the First Amendment. She's pretending or presuming to have the power to directly compel a printer to print. Such functions are clearly within the meaning of "the press" in the First Amendment. In the 1780's people thought of "the press" as meaning, in significant part, physical printing presses.

[Brett Bellmore]

Yes, she's proposing a constitutional violation. No, if Congress had given her a statutory hook, the courts would likely not care. Because the Court has decided that, as soon as money changes hands, constitutional rights evaporate.

[Jack Jordan]

Brett, how can you distinguish 303 Creative? The Constitution bars government from compelling anyone to create or communicate expressive content.

[Brett Bellmore]

The customer wasn't asking Office Depot to create or communicate squat, they were asking them to print something somebody else created. Photocopiers don't create or express.

[Jack Jordan]

Brett, I phrased that poorly. Obviously, the facts are a little different. But I meant to inquire about principles. Why do you think the principles would be different? 303 Creative acknowledged that a person cannot be compelled to create content that is objectionable to the creator. A printer must produce or reproduce content. Why would the printer's power to choose to print or not to print content be less protected? Why would not the very same principles as SCOTUS articulated in 303 Creative govern here also?

[River]

Because Office Depot is generally not in the business of "choos[ing] to print or not to print content". They just copy whatever anyone pays them ten cents a page to copy. You are equivocating between two different senses of the word "create". What Office Depot does is "creating" in the sense of causing a physical object to exist. Ikea also causes physical objects to exist, but nobody thinks they are speaking when they manufacture a bookshelf. In 303 Creative the court found that the plaintiff was hypothetically speaking because she was hypothetically being creative, making choices about how to express celebration of the hypothetical clients' marriage. Office Depot does not create in this sense. Office Depot makes no choices about how to express anything. It just provides an entirely mechanical process for duplicating whatever the customer brings in. The customer is speaking, but Office Depot is not.

[Jack Jordan]

River, what principle makes it matter that Office Depot isn't exercising intellectually creative powers?

In the 1780's people operating printing presses weren't necessarily thinking about everything they printed for other people. Like Office Depot, they were paid to print (if they were fortunate). But some printers at that time were known to be politically partisan. They would not (and I think they were not expected by anyone to) print something they didn't want to print.

I am certain that nobody thought the government could compel Freneau and the National Gazette to print anything favorable about any Federalist or compel Fenno and Gazette of the United States to print anything not favorable about any Federalist.

Can you state any principle that both establishes and limits any public servant's (purported) power to compel anyone to produce or re-produce content that the person wishes not to produce or re-produce?

The First Amendment secures the freedom of persons (including businesses) to think, express, communicate, associate and assemble as they please with respect to the information content of any of the foregoing. For that matter, Madison (and I think SCOTUS) emphasized that the same principles protect religion as protect other rights and freedoms secured by the First Amendment. Our public servants cannot compel us to do anything that restricts our First Amendment freedoms with respect to content of information without being able to bear certain burdens.

Public servants must affirmatively prove how they “determine[d] the constitutionality of” each content-based “restriction” with “strict scrutiny.” Republican Party v. White, 536 U.S. 765, 774-775 (2002). Accord Reed v. Town of Gilbert, 576 U.S. 155, 163-164 (2015).

“Content-based” regulation is “presumptively unconstitutional.” Reed at 163. See also id. at 163-64 (identifying “content-based” restrictions). Content-based regulation must “be justified only” by government “prov[ing] that” any regulation was “narrowly tailored to serve” public “interests” that are “compelling.” Id. at 163.

[River]

I'm not that familiar with the founding era history, and I'm not sure what the point is. You speak in a lot of abstractions about "soverienty" below, and here a lot of talk that sound like it is about the burden of proof, neither of which seems to shed any useful light here. Nobody is disputing which side would have the burden of proof in a hypothetical prosecution of Office Depot. The only thing I see you saying that seems to have any attachment to actual First Amendment law is talk about content-based regulation triggering heightened scrutiny. And to even get to that question, Office Depot would have to have engaged in some kind of speech. You yourself admitted that in this scenario, where a customer wants to copy something, Office Depot is not speaking at all. That admission ends the First Amendment analysis. That is how First Amendment law works. There is no content based regulation of Office Depot's speech because Office Depot isn't speaking.

Let me ask you this. Do you think the First Amendment would be violated by a law requiring Ikea to sell bookshelves to any paying customer, regardless of that customer's ideology? If so, then you have an extremely broad concept of what the First Amendment covers, a concept that goes far beyond anything SCOTUS has ever said, and it would be nice if you would acknowledge that and provide some explanation of what you think the scope of the First Amendment is and why. If you agree that such a law would not violate the First Amendment, then please explain how Ikea is different from Office Depot.

[Jack Jordan]

River, your analogy is irrelevant. The content we're addressing here is information, not furniture. Information is the content that the First Amendment addresses. Printing is one of the actions that the First Amendment addresses.

A certain level of abstraction is necessary. It makes no sense to think our Constitution protects our rights only under the precise circumstances of a prior court decision.

Please identify a legal principle that makes you think the government (1) cannot compel someone to create content (as in 303 Creative and Cakeshop) but (2) can compel someone to reproduce content.

You also continue to fail to address the precedent in Gilbert, which I quoted for you. The precise issue that the article here was about was whether Office Depot could be punished for refusing (or could be compelled) to print materials about Charlie Kirk. That's clearly content. It's even clearly political content.

[Jack Jordan]

River, the principles articulated in Barnette also are dispositive here.

If some principle somehow authorized a government to compel a printer to print third-party content that the printer wished not to print, and the government cited as dispositive the mere fact that the printer exercised no creative expression, then a government could (in a certain area or all over the country) order every business with a flagpole to fly a certain flag (provided by a third party) at certain times or on certain days. Am I wrong? If so, why do you think so?

Or even more clearly apposite:
If some principle somehow authorized a government to compel a printer to print third-party content that the printer wished not to print about Charlie Kirk, the government could order every business with a flag and a flagpole to lower their flag to half staff to honor Charlie Kirk. Am I wrong? If so, why do you think so?

[River]

Firstly, I wish you would stop calling Office Depot a "printer". You are equivocating between two different uses, just as you did with "creative". A "printer" in the sense of something that mechanically creates printed words, as Office Depot does, is different from a printer in the sense of an institution that communicates its own ideas by means of publishing written words, which is the thing that implicates the First Amendment.

Secondly, I do think a mandatory flag salute (the thing actually at issue in Barnette) or a mandatory lowing of a flag to half mast is different from the Office Depot situation and does implicate the First Amendment. They key difference is this. When someone recites the pledge of allegiance, or displays a flag, or lowers a flag to half mast, that is generally understood as expressing the views of the person doing it. The state of West Virginia wanted the Barnette children to recite the pledge of allegiance because they wanted those children to actually have allegiance, not merely to understand some message of the government's. And in a free society, the government can't falsely convey the message that a private citizen agrees with the government about anything. The government cannot hijack the credibility of a private speaker to bolster its own message. By contrast, when Office Depot copies something a customer brought in, no sane person thinks that Office Depot is speaking at all. The message is not bolstered by Office Depot's endorsement, because Office Depot isn't making an endorsement. Office Depot's credibility isn't being hijacked. You yourself admitted that Office Depot is not speaking when it copies something for a customer. You can't then argue that Office Depot is being compelled to speak a message it does not agree with. That doesn't make any sense. Either Office Depot is speaking, or it isn't. Pick one.

[Jack Jordan]

River, clearly Office Depot is a printer--exactly like printers of the 1780's operating printing presses. If you think otherwise, please explain why. Printer in the 1780's didn't mean a machine (that was "the press," i.e., a printing press). In the 1780's a printer was a person or a business. You misunderstand what printers did in the 1780's. They very often did virtually exactly what Office Depot does when it prints. People asked printers to print things, e.g., handbills and broadsides, etc.

That's why, e.g., SCOTUS's Cakeshop decision was correct. The medium is irrelevant. The production or re-production of content is the material fact. The right to be free from government compulsion to produce or reproduce such content is the dispositive legal (constitutional) principle. Nobody thought that the content expressed by a cakeshop at the express request of a customer reflected the baker's own creative idea about such content.

Regarding my question, you didn't answer my question. You merely changed the facts. I'm not concerned with the facts of the Barnette case. I'm concerned with the legal principles articulated by SCOTUS in Barnette (and the other SCOTUS decisions I cited for you) to clarify the meaning of the "the freedom of speech" and "press."

To make my question more clearly analogous to the facts of this matter, think of only businesses that already were flying flags on the day Trump said: lower the flags to half staff. Could government order people to do that? Everyone would know that it was because of a government order, i.e., it did not reflect any person's or business's viewpoint or even the content of such person's personal expression.

[River]

We seem to have reached maximum comment depth, so I'll try to make this my last comment.

I do not know enough history to speak to what exactly printers did or didn't do in the 1780s. We are lawyers, not historians, and the law of the First Amendment really came about in the 20th century, not the 18th. What I can point out is that you are making a ridiculous generalization. And this seems to be your pattern. You quote language from Barnette or wherever that is so abstract that it can't possibly tell us the answer to any scenario, and act as though it was determinative. I could quote the same language and act as though it is determinative the other way just as easily, because the sort of language you quote is too abstract to be determinative either way. Pretending it is is childish.

What should be apparent is that the freedom of the press cannot refer to anything a printer did in the 1780s. Printers in the 1780s had apprentices with contracts so severe they would surely be illegal today. The constitution does not guarantee even the New York Times the right to have apprentices on the same terms as a printer in the 1780s. There is a question then of which of the things that printers in the 1780s did are protected by the First Amendment, and which are not. The text of the First Amendment does not answer that for us, the case law that SCOTUS has developed does.

And you clearly haven't been paying attention to that case law. You seem to take a case and the headline result, and just assume it uses the reasoning that you like. Masterpiece Cakeshop wasn't even decided based on the Free Speech Clause. The court did not reach that issue. Masterpiece Cakeshop was decided based on the Free Exercise Clause, because the Colorodo board showed too much animus in rejecting the baker's claim. So that case is irrelevant to our current discussion.

To pretend that a government order to lower the flag somehow makes the speech not the speech of the business displaying the flag is to completely ignore the psychological dynamic that everyone involved would understand. Why would the government issue such an order? It would only issue the order because it wants the business to become complicit in the message it is sending. And that is the thing that implicates the free speech clause. Whereas with the flyers Office Depot was asked to copy here, nobody thinks that Office Depot copy them would make Office Depot somehow complicit in their message. Nobody cares what Office Depot thinks, not the customer who wanted the things copied, not Pam Bondi, nobody. The customer just wanted the copies of the flyer. That's it. That is extremely different from the government trying to coerce uniformity.

You asked for a legal principle, that separates creating content from reproducing it. If you took the time to read the cases you cite, you would find it. 303 Creative, as I have said before, is very clear that the Free Speech Clause is only violated there because the plaintiff's hypothetical business involved her making creative decisions about how to celebrate a hypothetical clients' marriage. That making of creative decisions is the line that SCOTUS has drawn, and Office Depot clearly falls on the other side of it.

The Ikea analogy is relevant because what Office Depot is doing is no more speech (or printing in the relevant sense) than what Ikea does when it manufactures a bookshelf. You admitted that yourself when you said that Office Depot was not speaking. Are you retracting that statement? Do you now believe that Office Depot is speaking? If not, how can its freedom of speech or press be violated?

[Jack Jordan]

River, doesn't it strike you as strange that you're objecting that I am "making a ridiculous generalization"? What do you think our Constitution did? Why do you think lawyers and judges have been having this conversation for hundreds of years? Because our Constitution included a sweeping command protecting "the freedom of speech" and "the press." Of course, that general principle was meant to sweep very broadly. Hence my statements of general principles. That's the essence of constitutional law. If you don't like considering general principles, you won't like constitutional law.

It's a cop-out to say lawyers are not historians. That goes without saying. But if you're going to try to say what a legal document written and ratified by people in 1787-1789 means, you really need to learn something about that time and what they did and thought. And you have so many resources available to you that it's not even a decent excuse to say you're not a historian. Moreover, a lot of history is in court opinions. All you need is the desire or the discipline to look for it.

You continue to try to switch to irrelevant subjects. It's irrelevant that "Printers in the 1780s had apprentices with contracts so severe they would surely be illegal today." We're talking about the freedom of expression and communication, not contract.

The cakeshop case was correctly decided even when considered solely in light of the freedom of expression. The medium is irrelevant was my point. Decorating cakes and printing documents is closely analogous.

Regarding 303 Creative, you need to keep in mind that the principles SCOTUS articulated were construing the "the freedom of speech" and "press" in our Constitution. SCOTUS said a lot about the freedom of expression, generally (and they expressed very general principles to do so). What language in that opinion makes you think that the principles that SCOTUS articulated depended upon someone "making creative decisions"?

Your Ikea analogy is obviously irrelevant. Selling furniture is not printing. The Office Depot activity at issue is printing. Office Depot is a printer, very much analogous to printers of the 1780's who used printing presses to print things for third parties, and the freedom of the press (printing) is expressly secured by the First Amendment.

[Jack Jordan]

River, speaking of generalizations, the following are from 303 Creative majority opinion. Do they offend your sensibilities or do they help you understand a little better the more general "freedom of speech" and "the press" in the First Amendment? Many necessarily protect a refusal to reproduce content because of its content. The content that Office Depot is printing is not Office Depot's speech, but a refusal to print content because of its content necessarily and clearly is protected expression. When you consider the following principles stated in 303 Creative (sometimes quoting prior precedent), I recommend trying to think about what SCOTUS said in other decisions (which I cited) about the sovereignty of the people.

“The First Amendment” means “all persons are free to think and speak as they wish, not as the government demands.” It secures the “freedom to think as you will” and “speak as you think.” It “extends to all persons engaged in expressive conduct, including those who seek profit.” Its “protections belong to all, including” speakers or printers “whose motives” someone considers “misinformed or offensive.” It “protects” each person's “right to speak his mind regardless of whether the government considers his speech sensible” or “misguided,” even if it causes someone “anguish” or “incalculable grief.”

“All manner of speech” enjoys “First Amendment’s protections.” “A commitment to speech for only some messages and some persons is no commitment at all.”

“The freedom of thought and speech” is “indispensable to the discovery and spread of political truth.” “[A]llowing all views to flourish” is necessary to “test and improve our own thinking” as “individuals and as a Nation,” so it is a “fixed star in our constitutional constellation” that “government may not interfere” with the “marketplace of ideas.”

[Jack Jordan]

River, your objection to using generalizations to elaborate on the sweeping generalizations in our Bill of Rights reminded me of how Justice Jackson (writing for the majority) addressed that very issue in Barnette.

SCOTUS emphasized that it is actually "our duty" (of lawyers and judges) "to apply the Bill of Rights to assertions of official authority" to fulfill our "task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century." "These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to a soil" of modern judicial decisions.

[River]

Jack, you come off as a very pittiable person. You keep quoting these generalizations, as though that had some bearing on our disagreement. They don't, because we don't disagree about those general statements. We disagree about how those generalities apply to the situation at hand. Most disagreements in constitutional law are not about the generalities, they are about how the general principles apply to particular situations. The difference between an immature child first encountering these great principles in middle school civics and a mature adult seriously discussing constitutional law is that the child imagines that the general principles answer all the specific questions and that anyone who disagrees about a specific question is challenging the general principle, while the adult recognizes that even people who agree on the general principles often disagree on the specific applications and engages in serious consideration of how those applications work. You have repeatedly shown yourself incapable of the latter approach. That is sad. I am sorry for you.

[River]

I'll make one last attempt to point out the flaw in your reasoning. You say that "[t]he content that Office Depot is printing is not Office Depot's speech, but a refusal to print content because of its content necessarily and clearly is protected expression. " This is completely incoherent. If refusing to print is speaking, then logically printing must also be speaking, and vice versa. One cannot be Office Depot's speech without the other also being Office Depot's speech. The Barnette childrens' refusal to salute the flag was their speech precisely because their classmates' salute of the flag was their speech.

[Jack Jordan]

Brett, if I operated "Opus Dei Printing" and somebody wanted me to print porn (magazines, photos, whatever) or if I operated "Muslim Brotherhood Printing" and somebody wanted me to print posters of the Prophet Mohammed, could I refuse or could a law make me print it? Would the result be any different if the content was political, e.g., about Charlie Kirk? If so, why?

[Brett Bellmore]

Porn and religion get specially treatment, the latter based on having its own constitutional amendment.

Look, I don't LIKE commercial speech doctrine. I don't LIKE public accommodation laws. That doesn't make them go away.

[Jack Jordan]

Brett, why do you think the commercial speech doctrine is relevant? This isn't about the advertising or signage of Office Depot. This isn't about the content of any Office Depot speech. They're not speaking at all.

The regulation of porn and religion isn't relevant. I'm not asking about the government restricting such content. I'm asking about the government compelling someone (a printer) to print subject matter the printer doesn't want to print.

Why do you think accommodation laws are relevant? No one is sleeping at Office Depot. Almost no one will be going to Office Depot who doesn't already live nearby.

[River]

Wait, if you don't think that Office Depot is speaking, then why would you think that 303 Creative would apply? If Office Depot isn't speaking at all, then obviously Office Depot's free speech rights can't be violated.

[Jack Jordan]

River, please see my reply to you, above (including re: Freneau and Fenno).

[River]

In both of those cases, you might win under the Free Exercise Clause citing Hobby Lobby. But if the service these hypothetical printers provided was the same as Office Depot - just copying whatever a customer brings in - then I don't see how they would have a Free Speech Clause case. If, as these names suggest, these printers were providing a different service, doing something more creative, then maybe, it would depend on the specific facts.

[Jack Jordan]

River, please see my reply to you, above (including re: Freneau and Fenno).

[wvattorney13]

"Bondi is directly attacking and undermining "the freedom" of "the press" that is directly and expressly secured by the First Amendment. She's pretending or presuming to have the power to directly compel a printer to print. Such functions are clearly within the meaning of "the press" in the First Amendment. In the 1780's people thought of "the press" as meaning, in significant part, physical printing presses."

I strongly disagree. Office Depot is not the press. They don't publish anything. They are a retailer that allows others to duplicate their own paperwork.

As I said, Bondi is wrong, but if Congress passed a law that said that retailers like Office Depot, once they open to the public that they must take all comers, then that would certainly not infringe on the "the press."

[Jack Jordan]

wvattorney, is that your view despite my quotations from and statements about Citizens United, above? Because if government can force a printer to print something that the printer doesn't want to print, government can force other entities or people with printers (in businesses or offices) to do so. And if they can compel printing, then by the same logic, can't they also require entities or people to provide access to their computing power?

[Josh R]

What is access to computing power? Can you give an example?

[Jack Jordan]

Josh, I just did a quick search and showed the first thing I found:
https://gigsdoneright.com/sell-computing-power/

[Josh R]

OK. What would be the text of a law which required people to provide access to their computing power?

[Jack Jordan]

Josh, I'm not at all concerned with how to write such a law. I only was highlighting that we need to think about how any principles that justify giving government officials power to compel any printer to produce or reproduce content that the printer doesn't want to produce or reproduce will have implications beyond that context.

[Jack Jordan]

Josh, my position is that such a law would violate our Constitution in multiple respects no matter how the law was written.

[River]

Can you name one? Like, you are essentially proposing that the government demand taxes at least partially in the form of FLOPS rather than dollars. That sounds like poor policy, but I don't see how any portion of the constitution might be implicated.

[Jack Jordan]

River, please see my reply to you, above (including re: Freneau and Fenno).

[Jack Jordan]

River, any seriously substantive discussion of the First Amendment would be founded on the sovereignty of the people. The First Amendment secures the freedom of thought, expression, communication, association and assembly of the people, not as some kind of subject of government as rulers, but as the sovereigns over public officials as public servants.

Multiple SCOTUS decisions (and even more opinions of justices) said so. See esp. New York Times Co. v. Sullivan (1964), Garrison v. Louisiana (1964), Citizens United (2015), Ariz. State Legis. v. Ariz. Indep. Redistricting Comm'n (2015) and Alden v. Maine (1999) (discussing Chisholm v. Georgia (1793)).

The starting point for ascertaining the limits of our First Amendment rights and freedoms should be as SCOTUS emphasized in Bruen. An “Amendment’s plain text covers” the conduct at issue, so “the Constitution presumptively protects that conduct.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). Government must “justify” any “regulation” thereof, i.e., “must demonstrate” that regulation was “consistent with this Nation’s historical tradition” of protecting First Amendment rights and freedoms. Id. Government “must affirmatively prove that” any regulation was within this nation’s “historical tradition” of such rights and freedoms within “the outer bounds” of each “right” or freedom. Id. at 19.

[Josh R]

How can anyone judge whether such a law violates the Constitution without knowing what the law is?

Somehow, you think there is an analogy between printing and computing power. I don't see it or understand it. Having the text of the law might help me understand the analogy.

[Jack Jordan]

Josh, please see my reply to River, above (including re: Freneau and Fenno).

[Josh R]

Your Freneau and Fenno hypos are examples of the government forcing an entity to speak the government's message and as such are controlled by Wooley. In contrast, Office Depot is about the government requiring an entity to host a third-party's speech and as such is controlled by Pruneyard, Rumsfeld, Hurley, Tornillo, Pacific Gas and 303 Creative, which is not the same doctrine as Wooley.

[Jack Jordan]

Josh, I could see how you could think that's what I meant, but no, my "Freneau and Fenno" examples are not "examples of the government forcing an entity to speak the government's message." I wasn't talking about any government message. I was talking about government compelling a printer to print third party content that the printer didn't want to print. Same as here with Office Depot.

[Josh R]

If the government required Fenno to print a third party's message that he did not approve of, that would violate the First Amendment because Fenno's "message was affected by the speech [he] was forced to accommodate." (Rumsfeld v. FAIR). In contrast, Office Depot's message is not affected by being forced to print a flyer as-is (without customization).

[Jack Jordan]

Josh, how would Fenno's message be affected by merely having to print something else? Printers in the 1780's printed more than mere newspapers. They often printed other things, including handbills or broadsides. Even when they printed newspapers, they printed things other people wrote. The didn't employ journalists. They were printers. They functioned much like Office Depot. It really is worthwhile learning something about what "the press" meant back in the 1780's.

[Josh R]

From Rumsfeld, distinguishing the result in Rumsfeld from Tornillo and Pacific Gas:

In Tornillo, we recognized that “the compelled printing of a reply … tak[es] up space that could be devoted to other material the newspaper may have preferred to print [...] The same is true in Pacific Gas. There, the utility company regularly included its newsletter, which we concluded was protected speech, in its billing envelope. 475 U. S., at 8–9. Thus, when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility’s ability to communicate its own message in its newsletter.

As I earlier argued, "I doubt Office Depot can successfully argue they have a meaningful limit on the customers they serve and endorse the messages of the ones they do serve."

[Stephen Lathrop]

wvattorney — It has been commonplace for printing press owners to contract to print newspapers, sometimes multiple newspapers from rival publishers, on the same physical press. That practice dates back to the pre-revolutionary era in American history. I think you have a tough row to hoe if you want to claim that a law which might have stifled the Boston Gazette would have passed muster in colonial Boston. But leaving the counter-factual aside as bad historical practice, it did not happen.

[River]

The principle Bondi is appealing to is that a business that simply provides printing services in exchange for money is not itself speaking, and should therefor provide those services to anyone who walks in the door and is willing to pay, regardless of content. It sounds like that would help pre-revolutionary newspapers, not hurt them.

[Jack Jordan]

River, please see my reply to you, above (including re: Freneau and Fenno).