So how far does this new logic take us? Does it mean, for example, that religious lawyers will now have the right to refuse to defend gay clients (since giving an argument in court is creative speech)? Does it mean that religious publishers will now refuse manuscript submissions from gay authors (since the publisher's editing work is creative speech)? The potential fallout from this decision is massive and disheartening...
Because it works. Having “white only” restaurants, schools, pools, etc. was (hopefully) obviously horrific. Requiring service to black Americans clearly was effective. We’re sliding backwards with this ruling.
Not at all. Between this and the court throwing out affirmative action in higher education, we’re finally getting past this crap. Next step is going to be eliminating affirmative action in private sector hiring practices.
In all these situations it’s helpful to imagine flipping around the characters to see the sheer nonsense of the complaints.
Would it be morally acceptable to only hire whites?
Would a design firm run by a gay man be required to design an anti gay marriage billboard?
I mean, yes. Traditionally, prior to the recent rulings, a gay man running a design firm would in fact be compelled to to do the best work he felt he could for, say, a Catholic church, because religion is a protected class. So what? He's not obligated to own a business and the fact he has hung a shingle bears some obligation to serve his fellow Americans.
> Would it be morally acceptable to only hire whites?
I think you're tilting at a windmill here. The more accurate question would be "Would it be morally acceptable for an all black institution to categorically disregard white candidates because they don't have that 'urban vibe' the institution is going for." Well would it?
Because it was basically necessary to break the back of Jim Crow.
Jim Crow laws weren't just a set of laws put in place in southern states. They were an entire culture that said if you had the wrong color skin, you didn't deserve service. You didn't have to be treated as a fellow citizen. Your money wasn't as green as the next person's. And, indeed, via the Civil Rights Act we had to tie the right to operate as a legally-protected business entity to the obligation to serve all members of the community regardless of having qualities we recognized as unchangeable and ultimately harmless to society. We did it because it was the only way we could start to drive a wedge into American racism and separate the present from the past's grip on it.
And it has been working, we have watched each generation get progressively less racist. But racism will not go without a fight, and we are watching an atrocious but effective stand in trying to leverage the law of the land to support the prejudices of old.
We want the government to compel people to serve other Americans because they are other Americans. They deserve to be treated as fellow citizens.
> Because bigotry is incompatible with democracy, and you can’t have freedom without democracy
Neither of those claims seem obviously true to me. While I may dislike bigotry, I don’t know why you couldn’t have bigoted democracy. Similarly, while I may enjoy both freedom and democracy, I don’t see any reason democracy is required for freedom.
Because people's freedoms don't exist in a vacuum with no consequences on other people. I believe in the idea that people should be maximally free to do whatever they want without government interference. But there needs to be limits in certain situations whenever the negative impact of certain freedoms onto other people exceeds an acceptable threshold.
No it hasn’t. What’s been happening is that if someone operates a place of public accommodation, they don’t get to discriminate against members of protected classes.
Bigots attempt to reframe this as “conservative speech is being suppressed” and “conservative freedom of association is being threatened” but neither are true. Don’t want to have to serve everyone? Don’t run a business that serves the public.
Let's consider the case of a disabled person. As a class disabled people are a small minority that doesn't on average possess great wealth. A business and indeed in some areas all or most of business in a category may profitably choose to focus on other customers and make it impossible for such customers to avail themselves of that category of good or services.
Then consider black diners during segregation. Minorities like disabled folks are a minority of the population with a proportionally even smaller portion of the wealth. Like disabled people they could be unprofitable to serve as bigots may not want to sit down to break bread near minorities.
In both cased we decided as a society not to give merchants a choice for the overall good of society and those folks.
Furthermore ensuring businesses are conspicuously made to do normal things like serving all customers sends a not so subtle signal that those people are normal and acceptable and those attempting to isolate them are transgressive.
If we can leave off speaking in generalities there actually IS a wrong and a right side to this affair. It actually IS OK for people to be gay and the converse position is a mental disorder. Not all "preferences" are equally morally grounded and it does nobody any good to prop up mental disorders like religious conservatism as if they were normal acceptable positions.
LLCs or corporations have nothing to do with this particular issue. You can operate a business as a sole proprietorship where there is no distinction between the business and yourself and public accommodation laws still apply.
The usual “protect the children” trope is once again a lie. This is just being used as a cynical ploy by politicians to excite their base, and will cause suffering and oppress people who just want to live their life.
There’s a distinction — see incidents where a state employee refuses to issue a marriage license, and that gets the employee fired. Public defenders do not get the same leeway a non-state provided lawyer has in representing a client.
Yes. That is the whole goal of this SC: you must serve people who believe gay people aren’t people, but you cannot discriminate against those people because they don’t believe gay people are people, because their homophobia is protected but a gay person’s existence is not (because they aren’t people).
Refuse to defend gay clients, no. Refuse to defend gay rights, probably? The distinction is being drawn between the identity of a potential client and the nature of the creative work being requested.
EDIT: I'm reminded of a recent case in BC where a pre-op trans woman wanted a Brazilian wax and was refused service; the BC human rights tribunal held that while it is illegal to discriminate against trans people, she was being legitimately refused service because the service she was asking for -- waxing male genitalia -- was not a service which was available to anyone else either.
You are compelled to accept business from protected classes. The government cannot compel you to speak words against your values. In this case the government could compel the evangelical website designer to accept business from a gay couple, but could not compel her to design a website that endorsed gay marriage.
Practically, in other countries, for example alcohol-prohibited ones, workers do the design with placeholder content. This does not always work. There’s a severe social penalty if one of those workers is (against their will and efforts) associated with a forbidden practice. People who claim this ruling in the USA is about liberty are in denial that it only promotes fear.
I'm still really in disagreement that a web designer making a wedding site is creating _designs_ that in and of themselves are any kind of speech regarding anyone's rights. The client gives some pics they like, some copy for a short bio, a link to their registry, some copy with the date, venue, requested attire. I think the client does _not_ generally also request, "oh, by the way, we're not going to provide you specific wording but we'd like you to add some sort of statement about how important our equal right to marriage is". And if the website designer _did_ insert some political expression, the client has every right to be upset.
In real life, to the degree there is creative design work, it's in creating a useful site which reflects some aesthetic preferences indicated by the client, _not_ in expressing any opinion about rights. I think the 10th court was wrong in saying her services could be called "pure speech"; they should fall into the same bin as the wedding singer that has to sing but not write lyrics, the florist, the caterer, the photographer, etc. You're hired to provide a service, not to provide an opinion.
If you just want a standard template you don’t need to hire a designer, just use one of the many sites that offer that. Presumably if you hire a designer you do want some creative actions on their part.
Sure! Maybe a couple wants an animated map that shows their geographic paths that finally cross and intertwine. Maybe they both love early 2000s music and they want their wedding site to look like a myspace page that plays their fav song. But do LGBT clients as a group ask, "please write a paragraph of your own devising advocating for gay marriage as equal to straight marriage in the eyes of God"? No, they don't, so pre-declaring that as a class, making a wedding site for any LGBT couple would require her to "say" anything she disagrees with is false.
The site designer can be creative and so can the florist. That creative act is not a statement about the rights anyone should have.
You cannot refuse to sell somebody a bicycle because they are gay. You can refuse to write "I support gay marriage" on a custom bicycle paint job. There is a lot of murky middle ground between those two examples but people are still struggling to understand the most clear examples.
Nazis aren't a protected class. The difference being you can decide to stop being a Nazi but you can't decide to stop being black.
> Being forced into service to anyone should be repugnant to a free society
Nobody is forced to be a business owner. When the state licenses a business, that licensure implies all manner of obligations, from compliance with the civil rights act and associated acts to EPA protections to health code compliance.
Your freedoms are curtailed by being banned from storing rat poison above food preparation stations... Why is the obligation to serve a gay person who sits down at your restaurant table any different?
I'm trying to work out if you're trolling, malicious, or just naive.
Go to your prior comments, and replace "cheese burger" with "wedding cake". There is nothing in a wedding cake that is in any way more expressing than a cheeseburger with text on it saying "cheeseburger".
There are two issues here. First you seem to be intent on ignoring or dismissing the context of this lawsuit and ruling: the entire conservative movement and the Supreme Court it appointed have explicitly declared that they want to ban LGBT people from existing, and everything they're doing is with that aim. Secondly the explicit purpose of this ruling is to allow bigots to discriminate against minorities - the entire position is any service for a minority indicates "support" for a "political position", because to these people allowing gay people to exist is a political position.
This particular story is about Creative 303. It is about a website, not a cake or cheeseburger.
While it's possible, in theory, that foods in some particular contexts could be commissioned with some expressive message, this ruling can only be extended to things like making a Jewish baker make a swastika cake or a devout Muslim put a picture of Muhammad on a cake, not to the general sale of off-the-shelf goods to the public. And it says as much:
> Colorado now seems to acknowledge that the First Amendment
does prohibit it from coercing Ms. Smith to create websites expressing
any message with which she disagrees. Alternatively, Colorado con-
tends, Ms. Smith must simply provide the same commercial product to
all, which she can do by repurposing websites celebrating marriages
she does endorse for marriages she does not. Colorado’s theory rests
on a belief that this case does not implicate pure speech, but rather the
sale of an ordinary commercial product, and that any burden on Ms.
Smith’s speech is purely “incidental.” On the State’s telling, then,
speech more or less vanishes from the picture—and, with it, any need
for First Amendment scrutiny. Colorado’s alternative theory, however,
does not sit easily with its stipulation that Ms. Smith does not seek to
sell an ordinary commercial good but intends to create “customized and
tailored” expressive speech for each couple “to celebrate and promote
the couple’s wedding and unique love story.” Colorado seeks to compel
just the sort of speech that it tacitly concedes lies beyond its reach.
For cakes, you're probably thinking either of the Tastries case (an unrelated case in CA with a recent decision) or Masterpiece (the most famous of several), which ruled that:
"The Colorado Civil Rights Commission’s actions in assessing a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause."
Would you like to amend that statement given evidence that a Trump appointed justice delivered one of the biggest legal wins ever for queer people?
> Secondly the explicit purpose of this ruling is to allow bigots to discriminate against minorities
No, this is the holding:
> Held: The First Amendment prohibits Colorado from forcing a website
designer to create expressive designs speaking messages with which
the designer disagrees.
You can claim that they don't really mean that or something, but these words are what every other court will base their decisions on and justify them with. No right given by the text of that holding to refuse customers based on protected characteristics at all. That is not only illegal, but some of the same conservative justices have very strongly ruled against it in the past.
Your post neatly illustrates why I read actual court rulings and not reporting on them. Headlines about this have been wildly hyperbolic and completely unconstrained by anything actually said in the ruling.
It is gravely concerning that even Sotomeyer was willing to outright ignore things stipulated to by the parties in this case and Gorsuch, one of those guys who delivered one of the biggest legal wins for queer people ever, calls her out...
Yes, the government's role in regulating commerce is stronger than freedom of association rights for people engaging in commerce.
i.e. you don't have to be friends with someone you don't like, but you can't deny them commerce (your labor) based on their being in a protected class.
That is, if for whatever reason you don't like people of a certain (Race | Age | Color | Religion/faith | Sex | National origin or ancestry | Disability | Genetic information | Citizenship | Veteran status) you cannot deny them business.
You can according to this ruling deny them business if the work is an act of expression you refuse to do.
Yes. Do you believe you have the right to force others to service you, or do you believe that force is only justified in response to force? It’s one or the other.
I believe that people and businesses which offer services _to the public_ can and should be forced to serve everyone. No, you cannot have a whites-only lunch counter, taxi-cab, school, church or store, even if you're a white supremacist who genuinely believes that non-white people are somehow inferior. No, you cannot have a accountancy practice which bars hiring women even if the owner genuinely believes that women should be in the home. Yes, sometimes the military must be sent in to oversee the integration of a high school.
The creation of a society in which a class of people is held as a second class which can be excluded from public accommodations is itself an act of violence.
No, not having a right to my service is not force, and in fact arresting people for not servicing you is force. I’m glad we agree that you don’t believe that force is only justified in response to force.
No, I don’t think the government can arrest people for choosing to service different races. The Montgomery bus line was in fact forced to remove Rosa Parks by Jim Crow laws, which I oppose. And I doubly oppose it because you shouldn’t be forced to pay for something (taxpayer funded transport) you don’t have the right to use. And I triply don’t oppose it because I don’t think you should be forced to pay for it regardless of whether you have the right to use it. And had that public service not had the ability to obtain funding by force, it would not even be profitable to deny people on race in the first place, regardless of legality.
Is literal physical force really the only kind of violence you can understand?
Suppose you fly to Alaska to see the northern lights, in early winter. You make it to some remote town with low light pollution, and you have a reservation for your hotel -- but when you try to check in they turn you away. "We don't accept your kind here", someone sneers. You try the 8 other hotels in town and are denied service at all of them. The small airport you came into is closed. The night is cold, you become hypothermic, you fall asleep. You make it through the night but in the morning, the tiny airline that brought you in refuses to fly back out, but laugh at you and call you a slur. You're trapped in this remote frozen town. The restaurants won't serve you. The grocery store won't sell you anything. You're hungry and tired and cold and yo don't make it through the second night. A couple days later your body is briefly inspected by a medical examiner. "There's no indication of a physical trauma." Does the fact that no physical force was directed at your body really mean that no violence occurred?
During the Great Famine of 1876-78 in India, the British exported hundreds of thousands of tons of grain, and had dedicated a large amount of land to other cash crops (like tea). The British ran "relief" camps, where people were made to do hard agricultural labor to "earn" a meager amount of food assistance which was literally fewer calories than they would have burned doing that labor. When those people died, in substantial numbers, just because no blade or gun or blow was directed at their bodies, is it appropriate to say there was no violence? If the grain being exported was protected by claims of legal ownership, and thus also by a credible threat of hostile use of deadly force, if the land dedicated to tea production was similarly claimed, then is not the whole state apparatus of violence in protection of property effectively a weapon?
Suppose for the purposes of dialogue, I invent the word "fiolence" for coercive, non-consensual exercise of power against another, _other_ than the application of painful or destructive physical force towards a body. You can believe fiolence is not a subset of violence, and I can believe they are different manifestations of the same ability to oppress.
Some examples of pure fiolence would include: blackmail, false allegations, many forms of theft and fraud. But in many cases, fiolence is either combined with force or the threat of physical violence to create new harms. Suppose prisoners A and B are both subject to the forces of physical confinement but B is held in prolonged solitary confinement, which the OHCHR recognizes as torture. Or, as at Guantanamo, B is kept in cell with painfully bright lights and loud music to create sleep deprivation. Or B is held close to growling dogs on a very short leash, but no explicit threat is made that the dog will be allowed to bite them. Or B is given insufficient food, or denied access to medical care. All of these are harms _beyond_ the application of force to physically confine, which A also experiences.
Yes, absolutely, physical force or the threat of physical force can be justified and necessary to stop fiolence. And if you believe that the state should have any capacity to use arrest someone for wire fraud or smuggling or tax evasion, or that an armed sheriff's deputy can enforce an eviction order, or that a group of protesters can be arrested if they disruptively block a freeway or trespass onto an airport runway -- all of those are cases where force or the credible threat of force are used in response to something other than force.
We live in a society of laws which limit much more than just the application of physical force to each other's bodies -- because actual freedom and justice require more than just not getting physically beaten.
No. Coercion implies force, I’m not using any force on you by deciding not to service you. Stop trying to change definitions.
Blackmail where someone’s physical property is stolen and held ransom is force. False allegations to the police to induce an arrest is a threat of force. Theft of physical property or staying on someone else’s property is literal physical force. What force am I using on you or your things when I decide not to host you on my website?
To address the prisoners, lights and sound are arguably force, the extent at which it’s acceptable is up for debate. Not giving you food or healthcare is not force. However, being forced to be exposed to lights and sound, and being stopped from getting food and healthcare yourself is absolutely force. And you don’t get to combine actual physical threats with things that are not force to pretend like they are force.
Blackmail is not about stealing or ransoming physical property, but rather about a threat to communicate damaging claims, true or fabricated; stop trying to change definitions.
False allegations need not be used to induce arrest, but may be to defame, shame or stigmatize. Theft of non-physical property, e.g. almost all money, need not involve any force.
> What force am I using on you or your things when I decide not to host you on my website?
You're really not getting it; "force" is not the point.
> And you don’t get to combine actual physical threats with things that are not force to pretend like they are force.
Combining fiolence with force, and comparing the outcome with force alone naturally tells us about the impact of fiolence. When human rights experts say that prolonged solitary confinement is torture, it is because the psychological harm is severe, not because the threat of physical force is any different. If you think there's a moral difference between imprisoning someone and imprisoning and torturing someone through non-force means, then those extra actions must bear some real moral weight.
We live in the context of a society where the threat of force by the state is omnipresent, and non-physical means of manipulating that threat can nevertheless be fatal.
Sure thing. Then the blackmail, false allegations and “theft” of non-physical things you’re describing do not justify a forceful response. It’s that simple.
The impact of something that isn’t force is irrelevant, the only reason either situation is problematic is because of the forceful imprisonment. If you remove the force, then the comparison would become voluntarily living in a cell vs voluntarily living in solitary confinement, and neither situation is less moral than the other.
Lawyers refuse clients all the time. I’d imagine a deeply religious lawyer may refuse to represent a gay client as their religious beliefs would make them unable to represent the client properly.
A brief Google search shows that all the lawyers already have the right to refuse any client, though it comes in the form of answers from lawyers themselves, and they could be lying. What made you think they did not have such a right?
“Consistent with the First Amendment, the Nation’s answer is tolerance, not coercion. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.”
You can think and speak anything you want. But when you put an advertisement in the newspaper that you provide services and then you refuse to provide those services because of who somebody is, and who somebody is is a protected class... Well, up until recently, that was pretty well understood to be illegal.
There wasn't an actual case of injury brought before the court they ignored centuries of precedent to allow someone to bring a fake case about a hypothetical injury that they might have sustained in the future.
Under this theory I ought to be able to sue a woman I'm dating in case we in the future we have sex and she may in the future choose to abort my imaginary baby.
Your answer is contrived there is no reason other than deliberately fucking with the baker to ask him to bake that and furthermore any bakery could trivially forbid offensive orders without relying particularly on his religious freedoms.
Meanwhile Jake loves John for instance has a meritorious purpose and is non-offensive.
A meritorious and non-offensive purpose, in your non-religious opinion, at the complete disregard of the deeply-held beliefs from the other party.
Though I suppose I should rejoice that the law protects Muslims from bigots like you who state elsewhere that their views and people like them are the equivalent of a mental disorder.
It is meritorious insofar as it is designed to bring joy to another individual and celibate their relationship as opposed to provoking the baker by hiring him to produce a work designed solely to offend him.
Right. As though the Sin of Sodom and Gomorrah, as traditionally understood for over 1,900 years by Christian scholars (the "inhospitable" argument is an extremely modern take), is not one of the four sins that cries out to Heaven for vengeance.
As if asking a Christian or Muslim (because some Muslims actually do believe the same story and incorporate it into their law) to make a message supporting gay marriage, who takes that literally, isn't meant to be offensive.
We should not treat as equal things which are fantasy and things which are real. Harry Potter isn't real and neither is the story of God nuking a cities because they were perverts. There is no Sin of Sodom. In reality there are folks who are exclusively sexually attracted to people of the same sex and their choice is to live without love or join with people of the same variety.
Trying to make life harder for those folks who are doing nothing wrong to anyone by loving people is unjustifiable moral evil that isn't made less so by explaining the fantasies that justify such.
It's exactly as if you explained to me that how all bald guys were really death eaters and you had to keep them down so that Voldemort doesn't come back.
What a strange thing to get hung up over. If you were opposed to abortion, you might like to know ahead of time whether the person you're dating might end up aborting your child. Being able to know whether you are breaking the law prior to breaking it is a good thing, and we should be able to bring such cases in more situations.
Restricting ourselves to actual injuries makes it more challenging to use a stream of hypothetical cases to effectively rewrite the law based on imaginary injuries and forces us to deal with reality as we find it which is why we have centuries of jurisprudence with that standard being applied and no reason to abandon the standard other than to help the judges serve in their new role as super legislators the populace isn't entitled to vote out.
Colorado has shown its willingness and eagerness to prosecute purported violations of this kind before, several (two?) of which have ended up before the Supreme Court previously. Their expectation that they would run afoul of Colorado is perfectly legitimate.
> Before the district court, Ms. Smith and the State stipulated to a
number of facts: Ms. Smith is “willing to work with all people regard-
less of classifications such as race, creed, sexual orientation, and gen-
der” and “will gladly create custom graphics and websites” for clients
of any sexual orientation; she will not produce content that “contra-
dicts biblical truth” regardless of who orders it; Ms. Smith’s belief that
marriage is a union between one man and one woman is a sincerely
held conviction; Ms. Smith provides design services that are “expres-
sive” and her “original, customized” creations “contribut[e] to the over-
all message” her business conveys “through the websites” it creates;
the wedding websites she plans to create “will be expressive in nature,”
will be “customized and tailored” through close collaboration with in-
dividual couples, and will “express Ms. Smith’s and 303 Creative’s
message celebrating and promoting” her view of marriage; viewers of
Ms. Smith’s websites “will know that the websites are her original art-
work;” and “[t]here are numerous companies in the State of Colorado
and across the nation that offer custom website design services.”
The only opposition here is to selling a website with a message she opposes, i.e. she'd be happy to sell a website celebrating a straight marriage to a gay person, but not happy to sell a website celebrating a gay marriage to anyone.
Now you can say that she's lying, but nothing in this ruling prevents them from suing her if it was really about the customer and not the message.
According to the person and the story the media claims is that individual. The person has never come publicly outside of the media, and at this point, I have my doubts whether the person is the same, or whether the person is telling the truth (plenty of incentive to lie - and no oath to bind).
That's kind of a misrepresentation. She said that state law unconstitutionally restricted her actions.
If say, Alabama made a law that Black Americans couldn't vote, affected citizens wouldn't have to wait to be fined for attempting to vote, they could sue about the unconstitutionality of the law as soon as it was passed.
Civil rights violations are different. For article III standing in other types of lawsuits, you do need to prove harm. But civil rights violations sort of loom over you all the time, so even if you aren't trying to express the impugned right, it's still harming you is the logic (if my memory serves me right).
I’m not aware of a general “civil rights” exception to standing—can you cite your source?
But there is a 1st amendment exception—because of the “chilling effect” of restricting speech it’s allowed to sue even if a law hasn’t directly affected you. Which seems to be the case for this one.
> A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).
> ...
> A declaratory judgment is typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed; or when a party or parties believe that their rights under law and/or contract might conflict; or as part of a counterclaim to prevent further lawsuits from the same plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be applicable).
What is disquieting in this context is that SCOTUS is generally not in the business of handing out declaratory judgments. After all, if they start extrapolating on what could happen if a given course of action were taken, that gets disquietingly close to legislating from the bench.
It's odd behavior for Originalists, who, if anything, one would assume, would hew far more closely to the power of the courts at the time the Constitution was framed, which was very little.
It's interesting that you could use the first amendment to argue the exact opposite in this ruling. For example, by this logic social media is perfectly in their right to block posts from political positions they disagree with, which many folks might find impinges on their right to free speech.
Seems like a weird case for the Supreme to have taken in the first place, I don't really see how it clarifies anything really, since we still compel businesses to not restrict services based on protected classes.
EDIT:
Feel like I'm being clumsy in my writing above. What I'm trying to argue is--to me--it seems the crux of the case is whether (a) "won't make sites for gay marriage" == (b) "won't serve gay people in my restaurant". The latter is pretty clearly illegal, even the ruling upholds that. So if you think (a) == (b), then the ruling seems contradictory. If you think (a) != (b), then the ruling makes sense, akin to saying "a heavy-metal focused website maker has every right to refuse to make country music websites".
I can see both sides of the argument (a) == (b) and (a) != (b). What I can't see is how the First Amendment can be used to justify whether (a) == (b) or not. If you _already assume_ (a) != (b), then you can say a business shouldn't be compelled to say anything. However, you must first justify that (a) != (b). I don't think this ruling does that, so I don't think it's a very useful ruling for anything in the future, even if I see the merits of preventing overreach in government censorship.
>which many folks might find impinges on their right to free speech.
The constitution protects you from the government impinging on your free speech. It does not protect you from Facebook, your mother, or some random retailer from doing so.
The philosophical concept of "free speech" exists beyond the constitutional concept which is a subset.
Of course that’s within their right? Government censorship violates the principle that force is only justified in response to force, and not being allowed to use someone else’s service does not. It’s like saying that not wanting shoes to be banned and wanting to prevent people from wearing shoes in your house are contradictory positions.
I suspect this majority of the court would think social media is perfectly within their rights to do that -- after all, Citizen's United makes it clear the court thinks corporations have first amendment rights.
>by this logic social media is perfectly in their right to block posts from political positions they disagree with, which many folks might find impinges on their right to free speech.
Social media has been doing just that for a long time and and people have been defending it saying it is perfectly in their right to do so as a private entity speech cannot be compelled.
>I don't really see how it clarifies anything really, since we still compel businesses to not restrict services based on protected classes.
The entire case was about whether the law forcing the designer to provide services was "compelled speech" which would violate the first amendment
> For example, by this logic social media is perfectly in their right to block posts from political positions they disagree with, which many folks might find impinges on their right to free speech.
They clearly are, and always have been, and there are even laws to that effect protecting their right to do so.
People who believe that social media platforms are infringing on their free speech rights by moderating or banning content, even beyond strictly policing legality, are simply incorrect. Freedom of speech has never meant that all available platforms must be compelled to carry your speech.
134 comments
[ 2.8 ms ] story [ 203 ms ] threadIn all these situations it’s helpful to imagine flipping around the characters to see the sheer nonsense of the complaints.
Would it be morally acceptable to only hire whites?
Would a design firm run by a gay man be required to design an anti gay marriage billboard?
> Would it be morally acceptable to only hire whites?
I think you're tilting at a windmill here. The more accurate question would be "Would it be morally acceptable for an all black institution to categorically disregard white candidates because they don't have that 'urban vibe' the institution is going for." Well would it?
Jim Crow laws weren't just a set of laws put in place in southern states. They were an entire culture that said if you had the wrong color skin, you didn't deserve service. You didn't have to be treated as a fellow citizen. Your money wasn't as green as the next person's. And, indeed, via the Civil Rights Act we had to tie the right to operate as a legally-protected business entity to the obligation to serve all members of the community regardless of having qualities we recognized as unchangeable and ultimately harmless to society. We did it because it was the only way we could start to drive a wedge into American racism and separate the present from the past's grip on it.
And it has been working, we have watched each generation get progressively less racist. But racism will not go without a fight, and we are watching an atrocious but effective stand in trying to leverage the law of the land to support the prejudices of old.
We want the government to compel people to serve other Americans because they are other Americans. They deserve to be treated as fellow citizens.
Neither of those claims seem obviously true to me. While I may dislike bigotry, I don’t know why you couldn’t have bigoted democracy. Similarly, while I may enjoy both freedom and democracy, I don’t see any reason democracy is required for freedom.
Bigots attempt to reframe this as “conservative speech is being suppressed” and “conservative freedom of association is being threatened” but neither are true. Don’t want to have to serve everyone? Don’t run a business that serves the public.
Then consider black diners during segregation. Minorities like disabled folks are a minority of the population with a proportionally even smaller portion of the wealth. Like disabled people they could be unprofitable to serve as bigots may not want to sit down to break bread near minorities.
In both cased we decided as a society not to give merchants a choice for the overall good of society and those folks.
Furthermore ensuring businesses are conspicuously made to do normal things like serving all customers sends a not so subtle signal that those people are normal and acceptable and those attempting to isolate them are transgressive.
If we can leave off speaking in generalities there actually IS a wrong and a right side to this affair. It actually IS OK for people to be gay and the converse position is a mental disorder. Not all "preferences" are equally morally grounded and it does nobody any good to prop up mental disorders like religious conservatism as if they were normal acceptable positions.
Which is of course is the goal: lgbt people are not allowed to exist (as we already see in those states currently making it illegal to be trans)
https://www.pbs.org/newshour/amp/health/floridas-ban-on-gend...
EDIT: I'm reminded of a recent case in BC where a pre-op trans woman wanted a Brazilian wax and was refused service; the BC human rights tribunal held that while it is illegal to discriminate against trans people, she was being legitimately refused service because the service she was asking for -- waxing male genitalia -- was not a service which was available to anyone else either.
In real life, to the degree there is creative design work, it's in creating a useful site which reflects some aesthetic preferences indicated by the client, _not_ in expressing any opinion about rights. I think the 10th court was wrong in saying her services could be called "pure speech"; they should fall into the same bin as the wedding singer that has to sing but not write lyrics, the florist, the caterer, the photographer, etc. You're hired to provide a service, not to provide an opinion.
The site designer can be creative and so can the florist. That creative act is not a statement about the rights anyone should have.
It's the antithesis of self-ownership.
Let's follow Godwin's law:
Imagine a gay Nazi come into your printing store and demands that you print Nazi propaganda.
Do you really want to be forced to print that material simply because the customer is a member of a protected class?
> Being forced into service to anyone should be repugnant to a free society
Nobody is forced to be a business owner. When the state licenses a business, that licensure implies all manner of obligations, from compliance with the civil rights act and associated acts to EPA protections to health code compliance.
Your freedoms are curtailed by being banned from storing rat poison above food preparation stations... Why is the obligation to serve a gay person who sits down at your restaurant table any different?
> Why is the obligation to serve a gay person who sits down at your restaurant table any different?
Serving a cheeseburger is not speech. Writing "I support gay marriage" on a cheeseburger is
You'd have to work really hard to make selling a cheeseburger an expressive act.
Go to your prior comments, and replace "cheese burger" with "wedding cake". There is nothing in a wedding cake that is in any way more expressing than a cheeseburger with text on it saying "cheeseburger".
There are two issues here. First you seem to be intent on ignoring or dismissing the context of this lawsuit and ruling: the entire conservative movement and the Supreme Court it appointed have explicitly declared that they want to ban LGBT people from existing, and everything they're doing is with that aim. Secondly the explicit purpose of this ruling is to allow bigots to discriminate against minorities - the entire position is any service for a minority indicates "support" for a "political position", because to these people allowing gay people to exist is a political position.
While it's possible, in theory, that foods in some particular contexts could be commissioned with some expressive message, this ruling can only be extended to things like making a Jewish baker make a swastika cake or a devout Muslim put a picture of Muhammad on a cake, not to the general sale of off-the-shelf goods to the public. And it says as much:
> Colorado now seems to acknowledge that the First Amendment does prohibit it from coercing Ms. Smith to create websites expressing any message with which she disagrees. Alternatively, Colorado con- tends, Ms. Smith must simply provide the same commercial product to all, which she can do by repurposing websites celebrating marriages she does endorse for marriages she does not. Colorado’s theory rests on a belief that this case does not implicate pure speech, but rather the sale of an ordinary commercial product, and that any burden on Ms. Smith’s speech is purely “incidental.” On the State’s telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny. Colorado’s alternative theory, however, does not sit easily with its stipulation that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” expressive speech for each couple “to celebrate and promote the couple’s wedding and unique love story.” Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond its reach.
For cakes, you're probably thinking either of the Tastries case (an unrelated case in CA with a recent decision) or Masterpiece (the most famous of several), which ruled that:
"The Colorado Civil Rights Commission’s actions in assessing a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause."
https://www.scotusblog.com/case-files/cases/masterpiece-cake...
> the entire conservative movement and the Supreme Court it appointed have explicitly declared that they want to ban LGBT people from existing
So how do you explain that, despite Gorsuch being appointed by Trump and Roberts by Bush, they delivered this ruling:
https://www.washingtonexaminer.com/opinion/gorsuch-roberts-d...
Would you like to amend that statement given evidence that a Trump appointed justice delivered one of the biggest legal wins ever for queer people?
> Secondly the explicit purpose of this ruling is to allow bigots to discriminate against minorities
No, this is the holding:
> Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.
You can claim that they don't really mean that or something, but these words are what every other court will base their decisions on and justify them with. No right given by the text of that holding to refuse customers based on protected characteristics at all. That is not only illegal, but some of the same conservative justices have very strongly ruled against it in the past.
Your post neatly illustrates why I read actual court rulings and not reporting on them. Headlines about this have been wildly hyperbolic and completely unconstrained by anything actually said in the ruling.
It is gravely concerning that even Sotomeyer was willing to outright ignore things stipulated to by the parties in this case and Gorsuch, one of those guys who delivered one of the biggest legal wins for queer people ever, calls her out...
i.e. you don't have to be friends with someone you don't like, but you can't deny them commerce (your labor) based on their being in a protected class.
That is, if for whatever reason you don't like people of a certain (Race | Age | Color | Religion/faith | Sex | National origin or ancestry | Disability | Genetic information | Citizenship | Veteran status) you cannot deny them business.
You can according to this ruling deny them business if the work is an act of expression you refuse to do.
The creation of a society in which a class of people is held as a second class which can be excluded from public accommodations is itself an act of violence.
Suppose you fly to Alaska to see the northern lights, in early winter. You make it to some remote town with low light pollution, and you have a reservation for your hotel -- but when you try to check in they turn you away. "We don't accept your kind here", someone sneers. You try the 8 other hotels in town and are denied service at all of them. The small airport you came into is closed. The night is cold, you become hypothermic, you fall asleep. You make it through the night but in the morning, the tiny airline that brought you in refuses to fly back out, but laugh at you and call you a slur. You're trapped in this remote frozen town. The restaurants won't serve you. The grocery store won't sell you anything. You're hungry and tired and cold and yo don't make it through the second night. A couple days later your body is briefly inspected by a medical examiner. "There's no indication of a physical trauma." Does the fact that no physical force was directed at your body really mean that no violence occurred?
During the Great Famine of 1876-78 in India, the British exported hundreds of thousands of tons of grain, and had dedicated a large amount of land to other cash crops (like tea). The British ran "relief" camps, where people were made to do hard agricultural labor to "earn" a meager amount of food assistance which was literally fewer calories than they would have burned doing that labor. When those people died, in substantial numbers, just because no blade or gun or blow was directed at their bodies, is it appropriate to say there was no violence? If the grain being exported was protected by claims of legal ownership, and thus also by a credible threat of hostile use of deadly force, if the land dedicated to tea production was similarly claimed, then is not the whole state apparatus of violence in protection of property effectively a weapon?
Yes, property is an arbitrary thing defended by violence, but we both believe in property. I’m just more consistent.
Some examples of pure fiolence would include: blackmail, false allegations, many forms of theft and fraud. But in many cases, fiolence is either combined with force or the threat of physical violence to create new harms. Suppose prisoners A and B are both subject to the forces of physical confinement but B is held in prolonged solitary confinement, which the OHCHR recognizes as torture. Or, as at Guantanamo, B is kept in cell with painfully bright lights and loud music to create sleep deprivation. Or B is held close to growling dogs on a very short leash, but no explicit threat is made that the dog will be allowed to bite them. Or B is given insufficient food, or denied access to medical care. All of these are harms _beyond_ the application of force to physically confine, which A also experiences.
Yes, absolutely, physical force or the threat of physical force can be justified and necessary to stop fiolence. And if you believe that the state should have any capacity to use arrest someone for wire fraud or smuggling or tax evasion, or that an armed sheriff's deputy can enforce an eviction order, or that a group of protesters can be arrested if they disruptively block a freeway or trespass onto an airport runway -- all of those are cases where force or the credible threat of force are used in response to something other than force.
We live in a society of laws which limit much more than just the application of physical force to each other's bodies -- because actual freedom and justice require more than just not getting physically beaten.
Blackmail where someone’s physical property is stolen and held ransom is force. False allegations to the police to induce an arrest is a threat of force. Theft of physical property or staying on someone else’s property is literal physical force. What force am I using on you or your things when I decide not to host you on my website?
To address the prisoners, lights and sound are arguably force, the extent at which it’s acceptable is up for debate. Not giving you food or healthcare is not force. However, being forced to be exposed to lights and sound, and being stopped from getting food and healthcare yourself is absolutely force. And you don’t get to combine actual physical threats with things that are not force to pretend like they are force.
False allegations need not be used to induce arrest, but may be to defame, shame or stigmatize. Theft of non-physical property, e.g. almost all money, need not involve any force.
> What force am I using on you or your things when I decide not to host you on my website?
You're really not getting it; "force" is not the point.
> And you don’t get to combine actual physical threats with things that are not force to pretend like they are force.
Combining fiolence with force, and comparing the outcome with force alone naturally tells us about the impact of fiolence. When human rights experts say that prolonged solitary confinement is torture, it is because the psychological harm is severe, not because the threat of physical force is any different. If you think there's a moral difference between imprisoning someone and imprisoning and torturing someone through non-force means, then those extra actions must bear some real moral weight.
We live in the context of a society where the threat of force by the state is omnipresent, and non-physical means of manipulating that threat can nevertheless be fatal.
The impact of something that isn’t force is irrelevant, the only reason either situation is problematic is because of the forceful imprisonment. If you remove the force, then the comparison would become voluntarily living in a cell vs voluntarily living in solitary confinement, and neither situation is less moral than the other.
Good choice by the Supreme Court!
Under this theory I ought to be able to sue a woman I'm dating in case we in the future we have sex and she may in the future choose to abort my imaginary baby.
Meanwhile Jake loves John for instance has a meritorious purpose and is non-offensive.
Can you think of a less contrived test?
Though I suppose I should rejoice that the law protects Muslims from bigots like you who state elsewhere that their views and people like them are the equivalent of a mental disorder.
https://news.ycombinator.com/item?id=36546184
As if asking a Christian or Muslim (because some Muslims actually do believe the same story and incorporate it into their law) to make a message supporting gay marriage, who takes that literally, isn't meant to be offensive.
Trying to make life harder for those folks who are doing nothing wrong to anyone by loving people is unjustifiable moral evil that isn't made less so by explaining the fantasies that justify such.
It's exactly as if you explained to me that how all bald guys were really death eaters and you had to keep them down so that Voldemort doesn't come back.
This was lampshaded in Masterpiece case that noticed that they went past a whole bunch of cake shops to get to that particular one that would refuse.
> Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regard- less of classifications such as race, creed, sexual orientation, and gen- der” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contra- dicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expres- sive” and her “original, customized” creations “contribut[e] to the over- all message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with in- dividual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Ms. Smith’s websites “will know that the websites are her original art- work;” and “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”
The only opposition here is to selling a website with a message she opposes, i.e. she'd be happy to sell a website celebrating a straight marriage to a gay person, but not happy to sell a website celebrating a gay marriage to anyone.
Now you can say that she's lying, but nothing in this ruling prevents them from suing her if it was really about the customer and not the message.
She was never asked to make a website for a gay couple, and she even fabricated one for her case: https://apnews.com/article/supreme-court-gay-rights-lgbtq-we...
https://coag.gov/press-releases/attorney-general-phil-weiser...
If say, Alabama made a law that Black Americans couldn't vote, affected citizens wouldn't have to wait to be fined for attempting to vote, they could sue about the unconstitutionality of the law as soon as it was passed.
This is exactly the situation the designer believed themselves to be in, during the course of normal business.
But there is a 1st amendment exception—because of the “chilling effect” of restricting speech it’s allowed to sue even if a law hasn’t directly affected you. Which seems to be the case for this one.
"'We came here to exclude the negro. Nothing short of this will answer,' the president of the convention said at the time."
https://www.theguardian.com/law/2023/jun/30/us-supreme-court...
> A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).
> ...
> A declaratory judgment is typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed; or when a party or parties believe that their rights under law and/or contract might conflict; or as part of a counterclaim to prevent further lawsuits from the same plaintiff (for example, when only a contract claim is filed, but a copyright claim might also be applicable).
It's odd behavior for Originalists, who, if anything, one would assume, would hew far more closely to the power of the courts at the time the Constitution was framed, which was very little.
But it is perfectly on-brand behavior for this particular court who very much develop decisions by working backwards from their desired outcome.
Seems like a weird case for the Supreme to have taken in the first place, I don't really see how it clarifies anything really, since we still compel businesses to not restrict services based on protected classes.
EDIT:
Feel like I'm being clumsy in my writing above. What I'm trying to argue is--to me--it seems the crux of the case is whether (a) "won't make sites for gay marriage" == (b) "won't serve gay people in my restaurant". The latter is pretty clearly illegal, even the ruling upholds that. So if you think (a) == (b), then the ruling seems contradictory. If you think (a) != (b), then the ruling makes sense, akin to saying "a heavy-metal focused website maker has every right to refuse to make country music websites".
I can see both sides of the argument (a) == (b) and (a) != (b). What I can't see is how the First Amendment can be used to justify whether (a) == (b) or not. If you _already assume_ (a) != (b), then you can say a business shouldn't be compelled to say anything. However, you must first justify that (a) != (b). I don't think this ruling does that, so I don't think it's a very useful ruling for anything in the future, even if I see the merits of preventing overreach in government censorship.
The constitution protects you from the government impinging on your free speech. It does not protect you from Facebook, your mother, or some random retailer from doing so.
The philosophical concept of "free speech" exists beyond the constitutional concept which is a subset.
Social media has been doing just that for a long time and and people have been defending it saying it is perfectly in their right to do so as a private entity speech cannot be compelled.
>I don't really see how it clarifies anything really, since we still compel businesses to not restrict services based on protected classes.
The entire case was about whether the law forcing the designer to provide services was "compelled speech" which would violate the first amendment
They clearly are, and always have been, and there are even laws to that effect protecting their right to do so.
People who believe that social media platforms are infringing on their free speech rights by moderating or banning content, even beyond strictly policing legality, are simply incorrect. Freedom of speech has never meant that all available platforms must be compelled to carry your speech.
US Supreme Court rules website designer can refuse to serve same-sex couples
https://news.ycombinator.com/item?id=36540849
Supreme Court Rules Web Designer Can Refuse Work on Same-Sex Wedding Announcemen
https://news.ycombinator.com/item?id=36539051
Supreme Court allows web designer to refuse service for same-sex weddings
https://news.ycombinator.com/item?id=36535754