In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry
from the perhaps-unintentional dept
Last week’s 6-3 decision in the 303 Creative v. Elenis case, with all the conservative justices vindicating a website designer’s ability to refuse to build a website celebrating gay marriage, may seem at first glance to be a blow to gay rights. And maybe that’s what some or all of the six justices in the majority intended for it to be. But that’s not the upshot to the decision. With its language and rationale the majority has instead reinforced in our constitutional jurisprudence a critical recognition of the way the First Amendment right to free expression reaches online expression, including as expressed through coding. In so recognizing it the Court has ended up providing critical protection for everyone, including those whom bigoted government officials seek to victimize and silence. Even if that’s not what the Court realized it was doing, or intended to do.
To understand why this decision is actually good for the most vulnerable among us, think about what would follow if the case had been decided against the web designer. The dissent, quite reasonably, frets that it ensures that bigots can still be bigots. And it likely will. But a decision to the contrary, or even in her favor with a different rationale, would have handed them greater power to abuse than this decision preserves.
We know it would because we can see it happening right now before our eyes with a growing number of government officials who are using, as a vector of attack, the control of what views can be expressed on the Internet to favor bigots and their destructive messages. Consider, for instance, the actions taken by Florida to attempt to regulate the Internet by constraining platforms’ ability to eliminate the hateful expression they don’t wish to further (actions which so far have only been partially enjoined by the Eleventh Circuit). Or those taken by Texas, which the Fifth Circuit bizarrely blessed in their entirety (and are only now enjoined for procedural reasons). According to that court, Texas, which is busy trying to make life a nightmare for anyone state officials’ bigotry sets its sights on, can of course force Internet sites to only advance expression that vindicates its odious policy and suppress any expressive efforts that challenges it.
Expressive freedom is key to being able to push back at injustice and bigotry, which is exactly why bigots in government are trying so hard to impinge upon the right to speak against them, including online. The last thing the people they are trying to hurt need is for the Supreme Court to undermine that freedom. Expressive freedom is what makes it possible to tell Governors DeSantis and Abbott and their ilk to take a hike when it comes to trying to mold the Internet and the world in their bigoted image. Without it the fight against these censorial efforts, and bigotry overall, becomes that much harder, legally and practically, if not impossible.
Deciding the case as it did, by peeling the protection of free expression off from the question of the constitutionality of anti-discrimination law generally, both fortified the defense of expressive freedom and preserved anti-discrimination law. The latter’s destruction may still be a goal of this Court, and someday it may do away with it, but it will require a different constitutional theory and a different case. Following this one, businesses are still not free to discriminate. [p.20]. They still can’t turn away customers based on any protected characteristic of that customer. This decision is solely about the message the business is being asked to convey.
Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to compel. She refuses, the State insists, because she objects to the “protected characteristics” of certain customers. Brief for Respondents 16; see also post, at 26–27, 31–32 (opinion of SOTOMAYOR, J.) (reciting the same argument). But once more, the parties’ stipulations speak differently. The parties agree that Ms. Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” do not violate her beliefs. That is a condition, the parties acknowledge, Ms. Smith applies to “all customers.” [p. 17]
The dissent argues that it is easy to couch any discrimination in expressive terms. But that Subway calls its staff “sandwich artists” does not make its subs expression. And the majority acknowledges that, “Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions.” [p. 21-22] But expression has often been found expansively.
But our precedents endorse nothing like the limits the dissent would project on them. Instead, as we have seen, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers). [p. 23]
And even when there are gray areas, resolving those tensions in favor of finding expressiveness ultimately serves those who most need to speak out, whereas weakening the applicability of the First Amendment strips those whom bigots would target of important defenses and empowers those who would do further harm. In this case, had the Court ruled against the web designer because it was displeased with her opinions it would have represented a fundamental change in First Amendment jurisprudence. And with that change limited the expansive protection it had previously been found to provide expression and that people need for it to provide expression in order to be able to push back against those who would use their power to hurt. It also would have provided defensive cover for the DeSantises and Abbotts of the world and undermined the litigation seeking to enjoin their efforts.
For a Court that doesn’t seem to care very much about precedent, ignoring it whenever convenient to serve its cynical ends, it is no small miracle when it doesn’t find a way to curtail a constitutional right the public depends on. But even if in this case the Court may have been motivated to protect a right because this refusal served those cynical priorities, it nevertheless still protected that right, and for everyone, because instead of hobbling them it ultimately sharpened the doctrinal tools needed to fight back against those who would violate it.
It does so as follows:
The decision recognizes code as speech.
Perhaps the most important feature to this decision is its recognition that code can be speech and coding is itself an inherently expressive act covered by the First Amendment. The language reaffirms the Reno v. ACLU decision from nearly thirty years ago, which found that online speech was just as protected by the First Amendment as offline speech, but adds to it the important acknowledgement that speaking comes in more forms than just prose.
[W]e align ourselves with much of the Tenth Circuit’s analysis. The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents. We agree. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images, words, symbols, and other modes of expression.” They have stipulated that every website will be her “original, customized” creation. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage.
A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a “voice that resonates farther than it could from any soapbox.” Reno v. American Civil Liberties Union, 521 U. S. 844, 870 (1997). All manner of speech—from “pictures, films, paintings, drawings, and engravings,” to “oral utterance and the printed word”—qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet. [p. 9-10]
The judicial recognition that the “other modes of expression,” including, presumably, the coded parts of the website were not disqualified from First Amendment protection will matter in all sorts of cases as regulators of all sorts of political stripes try to constrain what the Internet can be, as suits their policy preferences. But even if we just contemplate those attempts (such as by Texas and Florida) to force the Internet to further bigotry, this case is important to those who would be victimized by those efforts because it means that (a) their own coding, including of their own websites, is subject to First Amendment protection, and (b) so is the coding of the platforms they use to facilitate their speech to connect, organize, and push back against hateful ideas. Per the logic of the decision, platforms can’t be forced to code their sites in a way that refuses or subordinates anyone’s message just because government officials, bigoted or otherwise, want them to.
The decision reaffirms that free expression applies to ones own direct expression as well as the facilitation of others’ expression.
In recognizing that code is speech, the Court affirmed that anyone can build their own website. But not everyone with something to say has the skills or other necessary resources needed to make their own website, or say anything in a particular medium where there is an audience they want to reach. Sometimes they need another’s help to facilitate their expression. This decision helps ensure that this help can be available by recognizing that facilitating someone else’s expression can involve an exercise of their own.
We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech. Again, the parties’ stipulations lead the way to that conclusion. As the parties have described it, Ms. Smith in tends to “ve[t]” each prospective project to determine whether it is one she is willing to endorse. She will consult with clients to discuss “their unique stories as source material.” And she will produce a final story for each couple using her own words and her own “original artwork.” Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. An individual “does not forfeit constitu tional protection simply by combining multifarious voices” in a single communication. Hurley, 515 U. S., at 569. [p. 10]
Recognizing that the First Amendment applies to every link on the expressive food chain, from direct speakers to the helpers that facilitate their speech, means that not only are website designers protected from having to produce websites for hateful people, but so are any others who provide their expressive services to others, including copywriters, filmmakers, songwriters, portrait painters, or, as the dissent frets, photographers. But this rule is not new; the Court had long ago found that newspapers that can’t be forced to run op-eds written by another favoring discriminatory policies because it would co-opt their expressive services to convey another’s message they didn’t want to convey. The 303 Creative decision simply extends that general principle and also means that even Internet platforms, which Texas and Florida have tried to conscript to make sure that bigots can use them to spread their hatred, cannot be so conscripted either. This decision means anyone can say no to providing their expressive services to those with messages of hate.
The decision makes clear that compelling speech is just as offensive to the Constitution as prohibiting speech.
We often think of the First Amendment as a defense against government censorship, or the silencing of certain speech. This decision makes clear that what the government is trying to do here is compel speech, and that such compulsion also violates the First Amendment.
[T]he government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505–506 (1969); see also, e.g., Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256 (1974); Wooley v. Maynard, 430 U. S. 705, 714 (1977); National Institute of Family and Life Advocates v. Becerra, 585 U. S. ___, ___ (2018) (NIFLA) (slip op., at 8). Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. See Hurley, 515 U. S., at 568–570, 576; see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U. S. 47, 63–64 (2006) (FAIR) (discussing cases). All that offends the First Amendment just the same. [p. 8-9].
Imagine what would happen if the Court had not said it does, and that compulsion could be allowed when the government decided the need is strong enough. The freedom to speak is as important as the freedom not to speak, because one way to fight back against odious messages is to not spread them yourself. What this decision says is that governments cannot force anyone to do that spreading.
The decision also pushes back on the idea that commerciality changes the result of the constitutional inquiry.
Articulating this point as unequivocally as it did is significant, and not just in reference to the already pending challenges against the Texas and Florida laws, where commercial platforms are being targeted for their expressive discretion. The reality is that most expression needs to be subsidized in some way, whether via a business model or some other means. If First Amendment protection could decrease when money is involved it would impose a significant burden on the ability on anyone expressing themselves freely, if by being able to afford to engage in that expression could somehow ebb that freedom.
Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting). Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. [p. 11-12]
Many courts as of late however have been giving short shrift to that unavoidable reality and finding that having a commercial quality to expression somehow changes the constitutional inquiry to result in lesser First Amendment protection. This decision provides ammunition to push back against that trend.
Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” Id., at 181a; see also post, at 33 (opinion of SOTOMAYOR, J.) (emphasizing Ms. Smith’s “commercial” activity). But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspa pers. See, e.g., Joseph Burstyn, Inc., 343 U. S., at 497–503; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 114–116 (1991); Grosjean v. American Press Co., 297 U. S. 233, 240–241, 249 (1936). [p. 16-17]
Indeed, there is an alarming trend on this front even just in Justice Sotomayor’s jurisprudence from this year alone, in the dissenting opinion here, and a few weeks ago in the majority opinion she wrote in the Warhol copyright case. Both opinions seemed to reflect a belief that the commercial exploitation of expressive acts somehow lessened the protection for that expression. In Warhol she found that a profit motive could be disproportionately dispositive to whether there could be a finding of fair use, a key limit on a copyright’s power the First Amendment requires to ensure that copyright doesn’t damage discourse, and here she expressed concern about business enterprises asserting First Amendment rights over their expressive activities because their expressive business is one seeking to derive profit from the selling of expressive products. In both cases she seems to have been blinded by the fact that the speaker was conducting business involving speech and as a result lost sight of the true issue involved in both cases, which was how law should not be allowed to interact with the substance of the speech’s message.
Because there is nothing in the First Amendment that limits its protection to non-commercial expression, nor could there be given the protection the Court has found previously for newspapers and other profit-motivated entities whose businesses earned money from expression. Nor could there be a rule that the First Amendment only protects individuals. After all, if individuals have the right of free expression, they should retain these rights even when they speak in groups, whether informally or in organizational entities. There is no principled reason why those rights should be extinguished just because individuals have come together to pursue their expression as a group, or for money. If the fact that businesses were involved could lessen the protection of the First Amendment it would not only chill every traditional media enterprise, or Internet business, but also any social movement with a formal organizational structure and operational costs to fund.
The decision stands as a ruling against a government party trying to meddle with private expression.
As we’ve seen with the laws in Texas and Florida, governments can be keen to meddle with online expression. This case reminds that the First Amendment cannot tolerate such meddling.
As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 633, 642 (1994). Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. [p. 10-11].
If the Court had ruled otherwise and given a green light to this meddling (in this case, as part of an attempt to curtail hate) there is the danger that it would have the effect of greenlighting other meddling (including those attempts to foster hate). Having a decision saying that, even in the face of a very good reason for government meddling, the government still cannot, helps guard against the next attempt by a government to meddle, which may not be so well-justified. Government officials bent on meddling with expression for damaging reasons are quite adept at packaging up whatever abuse they want to do with some sort of apparent justification, however specious, so a rule that disallows any meddling is therefore much more protective of speech rights than a rule that allows some.
The decision reminds that state interference with free expression requires more than just a compelling purpose.
The dissent is, of course, correct that the government’s purpose in regulating the web designer’s expression is a particularly compelling one, to make sure that none in society are excluded from it due to prejudice against a protected characteristic. Even the majority opinion would seem to concur. [p.12-13]. But having a compelling purpose is not alone enough to allow for the government to impinge upon free expression. To survive the needed judicial scrutiny there must be more to justify this impingement, and here the Court found there was not.
Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are “unique.” In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes. In Hurley, the veterans had an “enviable” outlet for speech; after all, their parade was a notable and singular event. In Dale, the Boy Scouts offered what some might consider a unique experience. But in both cases this Court held that the State could not use its public accommodations statute to deny speakers the right “to choose the content of [their] own message[s].” Hurley, 515 U. S., at 573; see Dale, 530 U. S., at 650–656. Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise. [p. 14-15]
As the Court noted, there are other web designers. This decision helps ensure that there can be, because the consequence of allowing any to say no to producing messaging they don’t want, more able to say yes, including to messages speaking against bigotry and abuse, because ensuring that the expressive rights of web designers are protected from government interference means they won’t be afraid to go into business helping people speak if by doing so they can be conscripted to express things they do not want to – including, as Florida and Texas have tried to mandate, messages that further discrimination.
The decision reminds that the applicability of the First Amendment cannot depend on the substance of the expression at issue.
That the Court rejected the justification for the Colorado law as a basis to impinge upon the web designer’s free expression is separately important because it reminds that the law cannot operate against speech based on the content of that speech, which is a traditional component of First Amendment jurisprudence. When the government starts evaluating the content of expression it starts playing the role of an unwelcome censor, deciding which ideas are acceptable and which are not. Indeed, the Court noted with alarm that the very purpose of the government action here was to “eliminate” certain ideas. [p. 20] Which is exactly the problem in Florida and Texas where the attempt to speech police is to favor the ones that victimize.
[T]he dissent refuses to acknowledge where its reasoning leads. In a world like that, as Chief Judge Tymkovich highlighted, governments could force “an unwilling Muslim movie director to make a film with a Zionist message,” they could compel “an atheist muralist to accept a commission celebrating Evangelical zeal,” and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages. Perhaps the dissent finds these possibilities untroubling because it trusts state governments to coerce only “enlightened” speech. But if that is the calculation, it is a dangerous one indeed. [p. 23-24]
The question this case raises is whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead.” [p. 19]. The dissent fairly argues that the interests of equal protection should be weighed heavily in favor of such a prescription, and there is indeed tension between the constitutional interest in protecting minorities and the constitutional interest in protecting free expression. But such elevation would be an exception from the general rule of content neutrality, and once exceptions start to be made they can easily soon eat the whole. Because if we have a good reason here, we’ll have a good reason there, and pretty soon the right to free expression will be so conditional it won’t be a right anyone can rely upon, no matter how much they need to push back on abusive power, including a censoring one.
A commitment to speech for only some messages and some persons is no commitment at all. By approving a government’s effort to “[e]liminat[e]” disfavored “ideas,” today’s dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic. But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell). [p. 25]
This decision also supports the notion that when it comes to challenging the regulation of expression, standing should be very broadly drawn.
Controversy emerged shortly before the decision was issued alleging that the web designer was not actually approached to build a website she didn’t wish to make. It’s a serious charge, but not one that itself impugns this particular result. Part of the reason is because the record supporting the decision was a series stipulations made by the parties, including the state of Colorado admitting that it would enforce its law against a web designer refusing to make a website about a gay marriage. That threat of a potential constitutional injury was enough for both the Tenth Circuit and the Supreme Court to find standing for the web designer’s challenge.
For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct—i.e., Masterpiece Cakeshop”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Before us, no party challenges these conclusion. [p. 5].
And it is good that they did because having broad ability to bring First Amendment challenges against abusive laws is critical. When it comes to laws that chill expression we don’t want that expression to be chilled first before we’ve had a chance to find that it had been unconstitutional to chill it; we want to make sure that it was never chilled at all. Which means that the people who think they are about to be injured by this sort of state action need to be able to challenge it before they’ve incurred the injury, which means that they need to have the standing to bring the challenge based on prospective injury, rather than only an actualized one.
We’ve also seen how important this sort of broad standing is for vulnerable populations before, such as in the constitutional challenge to FOSTA, where it required the DC Circuit to affirm that the plaintiffs did indeed have standing to bring the lawsuit challenging how FOSTA impinged on their expressive rights. In that case the law had already gone into effect and led to actual injury, but some injury was still prospective and only threatened by state officials. While we’re still waiting on a rule addressing FOSTA’s constitutionality, the challenge would have ended long ago if the plaintiffs had been found not to have standing. Which is why the broad approach to standing taken by the decision in the 303 Creative case is so important, because if the rule were that an injury must always have been accrued before a lawsuit challenging the law could be brought, it would let bigoted governments get away with enforcing their censorial laws to shut down speech against them. Whereas if standing is broad, then the laws might be able to be enjoined before they were able to do their damage.
In sum, whether unwittingly or otherwise, and despite the declared bigotry of this particular plaintiff, with this decision the Supreme Court majority has given everyone, including the most vulnerable among us, some powerful tools to fight those who would victimize them. It did so by continuing to reinforce its long line of cases making clear that the First Amendment protects everyone, from the worst among us to the best, by making sure that we are all protected.
[T]he First Amendment’s protections [do not] belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 468–469 (2007) (opinion of ROBERTS, C. J.) (observing that “a speaker’s motivation is entirely ir relevant” (internal quotation marks omitted)); National So cialist Party of America v. Skokie, 432 U. S. 43, 43–44 (1977) (per curiam) (upholding free-speech rights of partic ipants in a Nazi parade); Snyder, 562 U. S., at 456–457 (same for protestors of a soldier’s funeral). [p. 17-18]
Even terrible people wishing to express their terrible ideas about other people are protected, whether to express a view they wanted, or, as in this case, to refuse to be forced to express a view they didn’t want to convey. Time and time again the Court has found that the First Amendment’s protection of free expression protects the right of anyone to exercise that expressive discretion, regardless of how odious. And that it must protect that expressive discretion, to leave even the worst people free to say or not say what they choose, for it to protect anyone with more meritorious ideas and leave them similarly free to choose what to say as well.
Thus this decision should be something to cheer, but that inclination to cheer is naturally tempered by the Court’s conspicuous failings. For instance, although a generous rule on standing for First Amendment challenges is a good one, it is not necessarily one the Court has previously adhered to. Historically it has required more tangibility to the prospect of an injury than was available here, requiring an actual case and controversy because typically the Supreme Court has refused to be in the business of rendering advisory opinions. With so few facts in the record to pin this decision on it ends up seeming like an officious Court was just a bit too eager to produce a ruling that, at least on the surface, seemed to stick it to those it disfavored. Even though aggressively asserting jurisdiction here was not necessarily bad given the likely prospect of the threatened injury, and the solid defense of free expression that resulted, which would have been undermined by the Tenth Circuit’s ruling had the Court not reviewed it, it still does feel arbitrary for the Court to have asserted itself here and not in all other similarly situated cases. And it is that arbitrariness that makes all its decisions feel unfair and unjust, even when on their own merits, as here, they are not.
It is similarly hard to credit the result in this case given the animus the Court has expressed in other cases, including some it oddly cited here. After all, Boy Scouts of America v. Dale (allowing the Boy Scouts to discriminate against gays) and FAIR v. Rumsfeld (requiring law schools to let the military recruit on campus even when it was still excluding gays) were cases involving expressive association, which is not quite the same issue present here. (The Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston case, allowing gays to be kept out of a parade by organizers, is also cited, but that was a case where the issues were much more similar to this one, given the explicitly expressive nature of a parade.) The Rumsfeld decision also was one that found an exception to the protection the First Amendment should have afforded, and one the Court seems to have made in furtherance of its own biases.
Which thus raises the following question here: will the protective principles announced in this decision be broadly applied, even to litigants with which the Court doesn’t agree, or will the Court instead in the future find some specious basis to refuse to invoke them because it prefers the result denying them would bring? It is a serious question that this Court only has itself and its increasingly inconsistent adherence to precedent to blame for prompting.
But whether the Court might someday eat its words does not mean that these words in this decision were not the right words for the moment. Even if this Court were to someday abandon them, in the meantime they provide every other court with guidance to ensure that they, too, in matters before them, protect free expression from attacks by government, including those who would attack it to further their bigotry.
Filed Under: 1st amendment, bigotry, code is speech, colorado, compelled speech, free speech, scotus, supreme court, websites, wedding websites
Companies: 303 creative
Comments on “In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry”
Oooh, Koby and the Free Reach Gang aren’t gonna be happy about that one. 🤣
Not really.
This analysis assumes that the Supreme Court is constrained to issuing rulings that are consistent with its own prior rules.
I don’t think this is true. I think that the Supreme Court has shown its willingness to engage in rulings that support its ideology, irrespective of consistency.
Re: Did you read all of it?
The second to last paragraph addresses this. And also earlier explains that a ruling to the contrary would be what displaced prior precedent; this decision is entirely consistent with it.
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Re: Re:
You are truly, hilariously, depressingly naive about this.
Re: Re: Re:
The author of the blog post, whom you are calling naive, has well published evidence of legal experience and expertise.
Perhaps if you unmasked, (other) Anonymous Coward, and showed us the source of your 1st Amendment law expertise, we would not dismiss you as simply spouting a puerile opinion.
Care to do that for us? Or…
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Re: Re: Re:2
Cathy doesn’t want to admit to herself that she regularly leaps to the defense of the illegitimate circus of grifters and bigots that is the Supreme Court.
Re: Re: Re:3
Did Cathy strangle your childhood pet or something? Goddamn, dude, get a fucking grip.
Re: Re: Re:2
I didn’t say she wasn’t well informed. Maybe one of the nation’s experts in this area of the law, even. She probably knows just about everything about how SCOTUS precedent is supposed to work. What I know, after watching for the last ten years or so, is that ‘precedent’ is not a concept that Thomas, Alito, McConnell, & friends care to recognize when it’s inconvenient.
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Re: Re: Re:3
Here’s the thing, you are an asshole. Think I’m wrong in that assessment? Just look at your first post which has zero constructive criticisms but 100% assholery.
Now kindly fuck off.
Re: Re: Re:4
Interesting that your response is considerably ruder than anything I wrote. Do you need another beer? Maybe sleep in a little tomorrow?
Re: Re: Re:5
Interesting? Hardly. Rude? Yes, if you behave like an asshole you’ll be treated as an asshole.
Re: Re: Re:2
She also says “code is speech,” which ignored 2 facts:
1) Code is math, as this site has been saying for over a decade, and
2) the vast majority of web designers don’t really code anything. At best they copy/paste the code of others, but most just pick a WordPress theme and make minor changes with the gui.
IOW, I’m not convinced Cathy has a strong understanding of modern web “design” practices, which include very little design, and almost no coding.
Re: Re: Re:3
I’m pretty sure you don’t do any web-design at all considering your simpleton’s view of it.
Re: Re: Re:3
You’re right; I’ve only been coding websites since at least 1995 and had a multi-year career as a professional web developer before I became a lawyer.
So what would I know…
Re: Re: Re:4
Would you consider a print shop job speech, if it were applying computer-cut vinyl to a large sign?
What if it were just pushing ‘Print’ on a big color laser printer?
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Re: Re: Re:5
Of course those are speech. Anytime someone would produce something that has expressive speech, they have the right to decline to do so under the 1st Amendment. There is a long and somewhat dishonorable history of print shops refusing to do certain jobs when they felt the content was obscene or otherwise went against their sensibilities, for example.
You cannot co-opt someone into speaking things they find abhorrent, not under the guise of accommodation law, not at all. Any time you find yourself confused, think to yourself whether you would have the same opinion if the speech were “transwomen are men” as for “transwomen are women”. If you want those treated differently, you want to trample on the 1st Amendment.
Re: Re: Re:6
Hyman is a transphobe whose rhetoric aligns him with fascists who want to eradicate trans people. But regardless of how out of line he is, in this instance, the transphobe is correct: No one should be compelled to express, or facilitate the expression of, speech with which they disagree.
(Which also means, Hyman, that your belief in social media services having some kind of obligation to host all legally protected speech is undermined by that conclusion. They can’t have an obligation to host all speech and still have the right to refuse hosting certain kinds of speech—it’s one or the other, and SCOTUS picked which one wins out.)
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Re: Re: Re:7
Large generic speech platforms have a moral obligation to honor free speech because it is a foundational value of their society. They should allow all viewpoints to be expressed.
That obligation is only moral, however. They have the legal right, and should have that right absolutely, to censor content as they wish.
In addition to being a TERF, I am also a levitation-phobe, because I believe that if I step out of a window, gravity will pull me to the ground.
Re: Re: Re:8
That’s not what “phobe” means.
Re: Re: Re:7
Actually, I should say there’s one exception. If you are a government employee, and communicating with the public is part of your job, you may not speak contrary to the message you are supposed to deliver, while at work. (You may speak against it on your own time, making clear then that you are not speaking for the government.) That is because the government has the right to speak its own opinions for itself. So, for example, an employee of the CDC would not be allowed to speak out against a vaccine as part of their job if the CDC policy was to speak in favor of it.
Re: Re: Re:6
I hire someone to erect a giant pole in my front yard. Later I’m going to attach a sign to it. Can the installer refuse to install the pole?
My phone broke. Once I get it fixed, I’m planning on calling my representatives to give them a piece of my mind. Can the guy at the mall kiosk refuse to fix my phone?
Re: Re: Re:7
Yes on both counts, so long as the refusal is based on, say, whether they like you as a person and not your race or religious creed. What you do with the pole and the phone after they do their jobs is none of their business.
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Re: Re: Re:4
So you’re a middle-aged Gen-Xer? That explains a lot.
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Re: Re: Re:4
Not much apparently, bigot. Is Cathy even your real name?
Right For Once...
This was my thought too – the court got it right, probably by accident. While businesses must provide services with distinguishing among protected groups, the right of a person to refuse would be paramount – free speech vs compelled speech – if it requires someone to say or produce something they disagree with. If it bothers someone to make a cake that says “Good Luck, Adam and Steve” or produce a web site with similar messages, they are being asked to do something creative – everythng from layout, to fonts, to icing colour and selection or placement of photos on a web page is a creative decision.
What it does not allow (or, should not) is when there is no distinctive creative output that requires an expression contrary to their beliefs. A hotel room or Subway sandwich is the same whether recipient is straight or gay or other. Even a highly creative artisitic meal in a top end restaurant matters not what the cosutomer is; there is no warping the creative content to reflect the customer’s bent.
Each case will be a judgement call as to what extent creative expression is forced to be warped to a viewpoint unacceptable to the provider. Generally, though, it should be obvious.
I would assume a corollary judgement to come soon is when a person is engaged in work for hire. If I produce websites, and my employee chooses not to do certain ones? This decision was centered on first amendment, which does not apply to employment, not on religious freedom. I would have no obligation to accomodate their point of view if it means they cannot do their job. A screenwiter who refuses to write a gay sex scene does not get a paid holiday while someone else fills in – they are fired for failure to perform, any more than a Jewish or Moslem worker at a hog processing plant can claim they should not touch the main product.
The Supreme Court is illegitimate.
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Re:
This article is just Cathy submitting her application to Alliance Defending Freedom.
Re: Re:
The sourness of your grapes has been noted.
On "discrimination"
Seems like a spurious distinction to me. On the other side of the Atlantic, the discrimination analysis proceeds as follows:
As far as I understand, similar considerations apply in American discrimination law, albeit using different terms (such as disparate impact instead of indirect discrimination).
The “analagous or relevantly similar situation” test is problematic for its own reasons (see Liv N Henningsen, The Emerging Anti-Stereotyping Principle under Article 14 ECHR, 3 Eur. Convention Hum. Rts. L. Rev. 185, 207ff. (2022); Burden v. U.K., 2008-III Eur. Ct. H.R. 49, 79–80 (Björgvinsson, J., dissenting)) but — setting aside the subsequent question of countervailing rights of expression — the idea that this could not be conceived of as potential discrimination does not appear convincing to me. If the “analagous or relevantly similar situation” is “someone wanting to hire someone to create a wedding website” and the comparator is a heterosexual couple, then #1 and the second limb of #2 could still be fulfilled, even if the vendor does not turn someone away simply due them falling under a protected characteristic.
Re:
Some are saying that the two questions can’t be separated. This Court is saying otherwise, and I think it’s right, because the focus really needs to be on what is the message the refusing party is being forced to convey? In the general provision of goods and services, there’s no message at all. And it would be a different case if the web designer refused to make a website about something else just because the people asking for it were gay (although the designer could refuse for other reasons).
But it would be the same case if a heterosexual customer wanted to build a website celebrating a gay friend’s wedding. She just didn’t want to express happy thoughts about something she wasn’t happy about, and that’s important. No one should have to say happy thoughts, or sad thoughts, or angry thoughts, or favorable thoughts, about something they don’t actually feel that way about unless they want to. That’s a hell of a thing for the government to otherwise be able to force someone to do.
Re: Re:
Yes I think this is the important part discrimination based on the customer should be(is) prohibited. But discrimination based on the speech a job would require of the provider should be allowed.
And honestly I think solving the problem of bigotry is not a problem the “state” (federal or local) should be enforcing a solution to, or that we want them to be in the business of enforcing.
Re: Re: Re: On "discrimination"
What does “solving the problem of bigotry” entail to you? Rules regarding nondiscrimination attempt to address, if not solve, the effects of bigotry, by ensuring that persons are not treated worse due to their innate characteristics. I’m assuming the vulgar reading of your statement — i.e. that such rules should not exist — is not what you mean?
(And of course now we are veering off the topic of the article, which I apologize to Cathy for in advance).
Re: Re: On "discrimination"
Which — again, without prejudicing the speech issue — could raise discrimination issues of its own. Cf. Coleman v. Attridge Law, 2008 E.C.R. I-5603 (finding that negative treatment of non-disabled person due to relationship with person with a disability constituted disability discrimination); Molla Sali v. Greece, App. No. 20452/14, ¶ 134 (Dec. 19, 2018), https://hudoc.echr.coe.int/eng?i=001-188985 (holding that “Article 14 [on prohibition of discrimination] of the [European Convention on Human Rights] also covers instances in which an individual is treated less favorably on the basis of another person’s status or protected characteristics”).
I hope it is clear from the authorities referred to (European) that I’m not making a doctrinal claim about American law, but rather to point out that the distinction made by the Court is not as clear-cut or obvious as they wish for it to appear.
Sure — and that’s why I do not ever go to #3 in my comment. I just find the distinction drawn by the Court to be an unconvincing handwave to the make the issue appear easier to evaluate than it really is.
You miss the point
This is not about law, and you should know this.
you lead with
“vindicating a website designer’s ability to refuse to build a website celebrating gay marriage, may seem at first glance to be a blow to gay rights. And maybe that’s what some or all of the six justices in the majority intended for it to be. But that’s not the upshot to the decision”
And you are oh so cleverly right, their rights will still be there, all the time they are being violated, and this is an invitation extend that violation.
If I am building a website, it is for the speech of the person owning it, not the web head who wrote it
The case was brought, on a hypothetical basis, to advance hate, the supreme court blesses it, that is the real message
Re: Not about law...?
“If I am building a website, it is for the speech of the person owning it, not the web head who wrote it”
Exactly. And no one should be obligated to say something someone else wants to say if they don’t want to say it themselves.
Re: Re: Who's the speaker then?
I can’t get my head to go in this direction. If I build word processing apps, how does that make me the speaker of whatever someone using them says? Can a court publisher refuse to issue opinions they don’t agree with? What is I own & code a website publishing tool, which is then used by Smith to create a site capturing the speech of a fascist I don’t support … can I block Smith?
Re: Re: Re:
It doesn’t. Building an app that allows people to express speech doesn’t involve you in the expression of that speech. But building a website on commission does involve you in the expression of the speech to be placed on that website.
No. Their job is to publish a court’s decision; whether they agree or disagree with that decision is irrelevant.
In a practical sense? Unlikely. In a legal sense? Possibly.
I am still questioning the standing of plaintiff.
There is no case here. No one was injured in any way.
This sets a precedent, anyone can now sue for complete bullshit that never happened.
Re: Standing
As the post explains, First Amendment standing has always included prospective injury, and that’s a good thing. This decision just reinforces that rule; it didn’t make it.
And that means it’s not really an issue that the injury was hypothetical, because you had the state admitting that if the situation arose, it would throw the book at her. It’s that threat that made the standing, not the situation she described being worried about.
Re: Re:
The author of the email said he knew nothing about it, they lied to the court.
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Re: Re: Re:
Cathy doesn’t actually care about lies. She only cares that her golden calf was protected. She lives in the Bay Area and is sheltered from any of the harm that’s headed toward vulnerable people thanks to this ruling.
Re: Re: Re:
Such a lie may implicate the lawyers who filed the case, but has no impact on the standing question.
Re: Re: Re:2
Yes. The lawyers could be sanctioned; if the plaintiff signed an affidavit she knew was false, it could be perjury. I haven’t seen anything in either the 10th Circuit opinion or the SCOTUS opinion indicating that this had any effect on the outcome of the case, however, and the 10th Circuit was clear that it wasn’t required for standing (and SCOTUS agreed).
In a perfect world...
I would like for bigot-driven businesses to be open about it. In a perfect world, they’d be up-front about who they don’t want to serve, and then most of us would do business with just about anyone else. I’ve got a feeling that too many would then go back to being quiet bigots, while too many of the customers would be apathetic.
Re:
I think the situation largely resolves itself. After all, at this point everyone knows what this designer believes.
And if people discover another being so bigoted, that’s what Yelp reviews are for discussing.
The issue is that because of anti-discrimination law no one can actually hang a sign saying “no X allowed.” Because they aren’t allowed to refuse to do business on that basis, they really couldn’t advertise it, but that means that the market may not be able to discover their bigotry right away (unless it’s mentioned on Yelp et al).
Re:
Oh, they would—if they knew that open displays of bigotry would bring in more business than it would drive away.
Re:
Weird. In my perfect world, all the bigots are dead.
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You have a right to discriminate. You have to be a bigot for that matter.
All that “bigot” means is that your particular form of discrimination is particularly unpopular (or the speaker wants to suggest it is). It is, ultimately, just an opinion.
But freedom of association and freedom of speech (or lack thereof) are essential to liberty. If you add “except when you’re being a bigot” then you have neither because anyone can take it away just by claiming you’re being a bigot.
….which oh yeah, leftists do all the time in this country, actually. Like that’s your main play. That’s why you’re so mad about it.
But freedom of speech (and association) includes what you don’t like. This really isn’t hard.
Re:
And usually, that means we’re free to disassociate with your ilk.
Now stop harassing us.
Re: Re:
He’s not harassing anyone. He’s right.
Re: Re: Re:
Cathy, I respect your educated opinion amd think you’re right in this case.
However, I do hope you know that Matthew here is posting from a position of extreme bad faith and has at least physically threatened at least one commenter.
He may be right like how a stopped clock is right twice a day, but few people WANT him to stay.
He may be entitled to his opinion, yes, that’s allowed and I won’t disagree. But while Techdirt is public-facing, it certainly isn’t a public space.
And Matthew has been known to be… disruptive, to put it kindly.
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Re: Re:
I mean, yes, of course you can, except where you choose to associate in a public space such as tech dirt. (yes that is a choice and yes it is public)
I’m not harassing you. Seriously, you’re trying to paint voicing an opinion you don’t like as “harassing”. That’s probably not the dumbest opinion voiced on the internet, but it’s close.
“There are other web designers”
“There are other bakers”
“There are other photographers”
“There are other wedding venues”
“There are other wedding caterers”
eventually leads us to
“There are other social workers”
“There are other doctors”
“There are other charities”
“There are other neighborhoods”
“There are other towns”
“There are other states you can flee to”
eventually leads us to
“There are other train cars for you to get into so we can cart you and everyone else like you to the camp.”
The Supreme Court can talk all it wants about how their ruling doesn’t allow discrimination, but rulings like this are how it starts. The issues in Texas and Florida are a long ways away from being settled definitively, and the idea that this ruling will wind up stopping Texas and Florida from trying to force them to drop their attempts to force websites to cater to them, it’s not gonna work. Trusting the court that overturned Roe is just asking for a knife in the back.
Re:
I get that you’re worried. I understand that worry. But take it from someone who is prone to making hyperbolic posts like yours: Calm down.
I mean, not for nothing, but I’m someone who was initially pissed off about this result, and this article convinced me that the decision is ultimately good in a “free speech/association” sense even if it does open the door for SCOTUS to enshrine religious discrimination against queer people into the law. We’re hardly at the phase where SCOTUS is days away from declaring that quarantining queer people “for their own good” is legal.
It’s okay to be worried, but let’s not go so far as to start becoming doomers because of one SCOTUS decision, okay? You can be vigilant and reasonable at the same time.
Re: Re:
One point I didn’t make overtly (but the decision touched on) is that if every customer could show up and say, “Hi, I have a protected characteristic so you must help me speak my message” you would open the door to people using their religion as a cudgel to force web designers to say terrible things. After all, religion can be a protected characteristic, and some religions want to spread homophobia.
This freedom that this web designer has, to refuse messages she doesn’t like, means any web designer can refuse messages they don’t like, including those that spread hate.
Re: Re: Re:
Or race, for that matter. Imagine someone forcing a Black web designer to make a site for a local chapter of the Ku Klux Klan.
Re: Re: Re:
Hypothetical:
Is that web designer really still free to choose what they want to work on?
Re: Re: Re:2 Not this case
On a practical level, perhaps not. On a legal level, yes, although if the police refuse to prosecute for assault then the law might have something to answer for. But that’s not this case.
Re: Re: Re:3
It’s cute that you think that the cops refusing to help a queer person would be a departure from the norm, rather than the norm that it is. The cops won’t give a care. Hell, they’d probably join in on the harassment.
Re: Re: Re:4
And that’s why you escalate past the cops.
Are you under the impression that a different ruling would have eliminated nuts with guns threatening someone (which is already a host of illegal activities)?
Re: Re: Re:3
For someone who writes legal analysis, you seem grossly ignorant of rulings like DeShaney v. Winnebago County Department of Social Services and Castle Rock v. Gonzales.
Re: I addressed that point
When you don’t limit people’s expressive freedom you end up with more speakers. It also means you get more of those who would use their expressive freedom to facilitate others’ speech.
If it were limited it wouldn’t be good for making sure the vulnerable could speak because there would be fewer able to help them.
Re: Re:
And you get people with guns showing up at the doorsteps of those “more speakers” who advertise their support and openness toward helping facilitate others’ speech. That’s another part of the GOP’s strategy; get non-governmental fall guys with guns to intimidate supportive people into submission so the government and Supreme Court and claim plausible deniability.
Re: Re: Re:
*so that the government and Supreme Court can claim plausible deniability, I mean.
Re: Re: Re:
None of that changes with this ruling either way. Why are we pretending that this very real problem has fantasy roots?
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Re: Re: Argument ad absurbdum
If code is speech, and the government cannot compel speech, even of commercial entities, then net neutrality violates 1A.
Re: Re: Re: Strict scrutiny
You are correct in that net neutrality would need to survive strict scrutiny to not be found to violate the First Amendment. The issue there, however, is that it probably could. But the government action here, to prohibit the web designer’s refusal, could not survive strict scrutiny. They aren’t quite comparable situations, which is why the scrutiny analysis would likely resolve differently, but you are right that they both implicate free expression and thus would need to be subject to it.
Re: Re: Re:2
Net neutrality does not control speech, only its transient carrying as a switch between sender and receiver. That is it say ans ISP is the same as a phone service, that is it connects the parties in a conversation to each other, and is not part of the conversation. The first amendment is therefore no more relevant to ISPs that it is to phone, postal and other communication carrier services.
Re: Re: Re:3
That’s not right.
The First Amendment is relevant because mandatory intermediation of communication would normally implicate First Amendment interests. It’s just that in these instances we find that it doesn’t prevent NN regulation. But you can’t just jump ahead to “oh it doesn’t apply to these services” because there are reasons why it doesn’t apply, legally, that you can’t ignore, since without all those legal conditions being in place, it would apply. (For instance, there’s a reason why the First Amendment would reach Facebook but not the phone company. But if the world looked a little different, and Facebook were truly a monopoly or the phone company less of one, then the 1A analysis could be different.)
Re: Re: Re:
Net Neutrality doesn’t compel speech, shit-for-brains.
Re: Re: Re:2
Yes, it does. It’s just that we’ve decided that there are countervailing reasons that make it something we’ll tolerate.
Re:
Wow, that is the slipperiest-slopeyist disgusting-in-the-extreme reductio ad hitlerum I’ve seen in quite some time. I’m kind of in awe, but in a vomitous sort of way.
Expressive artists for hire can’t be forced to express any given message they otherwise refuse to express equals send people to the gas chambers.
Really? That is a probable outcome? Or is it a fucking twisted joke?
Perhaps we should sacrifice the few people of 303 Creative to the ovens right now, and therefore certainly save untold hordes from inevitably breathing Zyklon B in the future.
That would be the compassionate and ethical thing.
Re:
There is a big difference between working with someone to design a web-site, decorate a wedding cake, make a portrait painting etc., and selling them a car, a can of soup etc. The first requires building a working relationship, the second doesn’t. In the first case, if the producer cannot get on with the client, they should probably reject the commission to avoid future arguments as to whether they have produced what the client wanted.
Re: Re:
The Masterpiece Cakeshop case—prior to SCOTUS ruling on procedural grounds rather than the merits, anyway—was about whether a refusal to bake a basic, non-decorated, essentially “neutral” wedding cake for a gay couple violated a non-discrmination ordinance. Had Masterpiece sold the cake but refused to decorate it, that case likely would’ve ended the same as the Azucar Bakery case, which turned on a refusal to put a hateful (anti-gay) message on a cake while still offering to make the actual cake and sell the customer what they needed to decorate said cake.
Hmmm
“…will the protective principles announced in this decision be broadly applied, even to litigants with which the Court doesn’t agree, or will the Court instead in the future find some specious basis to refuse to invoke them because it prefers the result denying them would bring? It is a serious question…”
I mean if you were born yesterday it’s a serious question. since i wasn’t, i know it’s not. six members of the court will simply not allow the benefit of this decision to any trans person, gay person or black person under any circumstances, ever, and that will be that. how many times do we have to go through this before people start to get it? principles do not matter and arguably never have. only power matters. today, 50,000 businesses from sea to shining sea are getting out their “NO GAY NO TRANS” signs. you ready to live in that country? it doesn’t matter if you’re ready or not. you do.
Re:
Businesses are gonna claim that their signs saying “no queer folks” are expressive, the Supreme Court will agree, and Cathy will agree as well because freedom of expression is the most important thing to her. She doesn’t even give a fuck that this is the court that overturned her reproductive rights. Probably because she lives in the Bay Area in California where she’ll never have any issues getting reproductive healthcare…
Re: Re:
I would point out too, that while a “no gay, no trans” sign might itself be expressive, it would still be a slam dunk loss for the business if someone came in looking to test that as an operative policy.
“We reserve the right to refuse business to anyone” would suffer a slip-and-fail injury against such a sign.
Re:
No, they’re not, and there’s two reasons for that:
Re: Re:
On point No. 1: This decision only implicitly condones and endorses anti-queer discrimination. Everyone can see that. The Supreme Court is giving a wink-wink-nudge-nudge for bigoted businesses to start pressing at the edges so they can take their hate to court and make it legal, because the Supreme Court wants to do so.
On point No. 2: The way that a not-insignificant number of chuds go “based” and then start supporting businesses that wear their bigotry on their sleeves, I’m not sure that it’s the case that outwardly-expressive bigots quickly go out of business.
Re: Re: Re:
I’m well aware of that. But the implicit is not the explicit yet. If and when that happens, I’ll worry about getting my queer ass out of the country.
Any reasonable capitalist knows that pissing off more customers than you please is the quickest path to going out of business. You won’t see many businesses own any anti-queer bigotry unless they’re in a position to only piss off people who would never be customers in the first place.
Re: Re: Re:2
Given how sacrosanct you think Free Speech and Freedom Of Expression are, all up and down this thread, I’m not sure you will. You give me the vibe of someone who’d rather die here than live somewhere that has less of the thing you like.
Re: Re: Re:3
I admit that I like the fact that the United States permits far more speech to be expressed than a lot of other countries in comparison. The freedom to speak one’s mind without government intrusion—especially when saying things that a lot of other people will find offensive—is an incredible right to have.
That said: If my life comes under active and direct threat from a fascist government(/private citizens serving as unofficial stormtroopers) because I’m queer, I will not hesitate in finding a way to leave this country—and leave behind the freedom this country gives me to say as much. After all, I can’t speak out against fascism if I’m dead.
Re:
Therefore, the ruling is utterly irrelevant wrt your interests.
'Unless you have a religion that says you can refuse guess what?'
As I see it the primary point of contention in the ‘Did this just help or royally screw over minorities?’ question is ‘Will it be applied equally?’ and I do not see that happening in the states in question where it’s likely to come up and certainly not should a case get back up to the US Supreme Court.
As it shakes out in court I expect ‘I refuse to serve those sinful gays/trans/atheists/non-whites because of my religious beliefs’ is likely to be treated with a lot of credibility in court whereas ‘I refuse to serve those bigots simply because I find them/their beliefs abhorrent’ is likely to be given a lot less since it’s not related to religion and specifically not the ‘correct’ one.
Re:
Yeah. It’s not gonna be applied equally. Especially because if a queer or atheist person refuses to, say, make a wedding website for a cishet Christian couple, the fash dirtbags on the Internet would doxx that person and try to exact bigoted mob justice on them. They’d do that well before any case could be brought to court.
Re:
I address that point at the end of the post. If it’s applied equally, we’re all in great shape. If not, then we’re not, but only time will tell which the court will do.
BUT had it decided otherwise, we’d be worse off, because we could hand bigots in governments tools for enforcing that bigotry NOW. And, at least in the meantime, this decision binds the lower courts, and that’s where plenty of fights will play out, including many that never reach the Supreme Court.
Re: Re:
Not in any way that matters. Trump appointees and other GOP judiciary people will ignore the faux-protections this ruling would place on the marginalized and vulnerable.
Re: Re:
While I hope ypu’re right, Cathy, do remember that the GOP has already tried to do an insurrection.
Oh, and at least one “Republican” Supreme Judge has overturned Roe vs Wade and is gunning to destroy Section 230.
No one is safe anymore.
Mostly I am just enjoying ADF in full hair on fire flailing mode, screaming how everyone is making to much of the ‘fake’ request for a website, from someone who has disclaimed making that request, is heterosexual, is already married, and actually has made a website before.
They are trying to claim the gentlemen must have done it himself (well he says no) or an activist did it AFTER the case was started so it doesn’t matter…
I’m pretty sure that courts aren’t very fond of “meaningless” “unnecessary” documents being included in filings.
They got caught trying to play with perception, that she had to do this b/c teh gays were going to make her make a website, when this mystery meaningless document was cited to the media a lot of times.
This case was crafted for consumption & now they are trying to downplay their antics b/c many people are really confused why a meaningless document (that they talked about in the media so much) appears to fabricated and magically helped bolster her claims.
I look forward to her going out of business… not only because I think she is a horrible person, but she’s never built a website before and IIRC her whole business magically appears after ADF decided to seek a ruling.
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Once again, we see how the TechDirt community and liberals in general tell on themselves. They know that if they were in positions of power, they would adhere to no principle other than their boot stamping on a face forever, doing what they want because it is what they want. They cannot conceive of a Supreme Court acting differently.
That the government should never be allowed to compel expressive speech is such a simple and straightforward principle that it should not have taken a Supreme Court decision to affirm it. But of course woke ideologues admit of no principles, be it erasing freedom to speak or using explicit racism to elevate their favored victim groups.
Re:
Still here forcing yourself upon others against their wishes hyman?
Why don’t you go and do something constructive instead of being a shitstain on humanity?
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Re: Based
and redpilled.
Re:
lmao fuck off Hyman
Re:
[Projects facts contrary to the evidence]
We should know better...
Did any of you read the dissent? I think it clearly points out how anti-discrimination laws aren’t compelled speech. The majority opinion sells this as a case about protecting free speech, but it never was. It was always about discrimination.
Even if it did set the precedent this article suggests, I believe it’s very naive to believe it will be applied equally to future litigants. This court has already shown it rules how it wants, regardless of precedent with no consistent principles. Not to mention the stunning hypocrisy that went into the formation of it…
Re: Yes
I did read the dissent. It was alarmingly bad in understanding the issues and applying past precedent. It’s why I called our Sotomayor’s recent jurisprudence which has been deeply, deeply troubling.
Re: Re:
You would clutch your pearls at a Supreme Court Justice caring about defending the marginalized and vulnerable, wouldn’t you?
Re: Re: Re:
What?
I’m saying I’m alarmed because she DIDN’T. She was creating a legal regime that was only going to hurt them. And deluding herself and everyone else that she was somehow being a hero by giving governments that power to make their lives hell and take away their ability to speak out against it.
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Re: Re: Re:2
And what, the ADF, 303 Creative, and turds on the Supreme Court wound up creating a “good” legal regime on accident? This case is part of them setting up legal dominoes to fall in their favor. If you fail to understand that, then you’re the delusional one, Cathy.
Re: Re: Re:3
What you are describing is the way impact litigation works, and the left does impact litigation too. I even cited an example case in particular! Which you might have noticed if you actually read the post, rather then spent your time making up lies about me.
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Re: Re: Re:4
What, you mean the challenge to FOSTA that’s gonna take what feels like another decade to wrap up while the GOP takes the 303 decision and uses it to speedrun new challenges against anti-discrimination laws to the Supreme Court so they can keep tearing civil rights apart?
Re: Re: Re:5
I mean, it is also about the Florida and Texas social media bills and anti-queer legislation. As for how long it takes, that’s irrelevant.
Which is a separate issue, and one I think is a bit too speculative at this stage.
Re: Re: Re:6
Lol, FOSTA just got declared constitutional. And I agree with Blake Reid’s analysis that it’ll be used in coordination with 303 to advance a theocratic agenda, if it reaches the Supreme Court.
Looking at the speed and animosity with which the GOP is attacking queer people now, I think that remaining at your speculation stage is naïve.
Re: Hear Hear…
I’m with Jennifer, here.
Re:
Such laws can’t justify compelled speech. The government forcing Masterpiece Cakeshop to decorate a wedding cake for a gay couple would’ve been worse than Masterpiece’s refusal to sell a basic-ass cake altogether. What reasonable person would ever offer their services to the general public if they knew they could be forced by law to say or express ideas and speech with which they disagree?
Re: Re: Re:
None of the responses to me have responded to the argument in the dissent about speech.
I have yet to hear anything that convinces me there is compelled speech and thus any first amendment implication. I think it should become even clearer when we remember 303 Creative isn’t even a person. It’s the result of a contract between a person and the government. The person “speaking” by selling the goods and services to the public is an employee that signed a contract with the company.
At a practical level, can any of you tell me with a straight face you’ve ever been to a wedding, looked at the cake, and thought the baker spoke?
Re: Re: Re:
As the article pointed out (and several comments have repeated), the Colorado state government stipulated that any refusal by Ms. Smith to create a wedding website for a gay couple would run afoul of the state’s non-discrimination laws. That left four options on the table for Ms. Smith: Make a website she didn’t want to make, take the punishment regardless of cost, refuse to sell her services for wedding websites, or sue for her right to refuse. She chose the fourth option—and chose correctly, given that she won the case.
The First Amendment protects the freedom of association. But that freedom only exists if the government can’t interfere in our exercise of that freedom. Colorado basically threatened Ms. Smith with punishment for a refusal to associate herself with same-sex couples (and their weddings) by making websites that would violate her conscience and beliefs. Her refusal makes her look like a bigot, yes, but that refusal also requires protection under the law. No one should be compelled to express, or facilitate the expression of, speech with which they disagree—and that assertion must apply equally to both the marginalized and the privileged.
Doesn’t matter. The baking of a generic cake according to a recipe is an effectively neutral act, in that it has no speech attached. But decorating the cake in a way that expresses a message—even something anodyne like “Congratulations on the wedding, Steve and Dave!”—does have speech attached. As I said, the law shouldn’t force anyone to express speech with which they disagree. That’s why I’ve said that if the Masterpiece Cakeshop case had been about decorations alone, I probably would’ve sided with them. (Or at least I would nowadays. Can’t say for sure if I would’ve back when the case was fresh.) But that bakery refused to make the generic cake for a gay customer, which is why Masterpiece Cakeshop lost its case at every level but SCOTUS.
Re: Re: Re:2
Yes; discriminating against customers violates an anti-discrimination law. That doesn’t imply that selling a product is speech. Your second paragraph argues that it was actually the right of association that would have been violated. If that’s the case, then the ruling would enable discrimination by any business and we wouldn’t be talking about creativity. So, I still hear no argument as to why selling a product she already sells is speech at all.
She actually had one more option that the dissent mentioned. Cease being a public accommodation and make wedding websites as a private individual. 303 Creative is the result of a contract between a person and the government.
Re: Re: Re:3
But she isn’t selling a product alone—she is selling her ability to arrange expressive speech (i.e., images and text) in an aesthetically pleasing way. That means she will have to choose whether a given customer’s speech is speech with which she wants to associate herself and her business. Her decision to say “I don’t want to make wedding websites for gay couples” is, on a fundamental level, no different than a Black person deciding not to make websites for white supremacists. That the decision is rooted in religious bigotry is largely (but not entirely) irrelevant.
Except it doesn’t. As I’ve mentioned before, Masterpiece Cakeshop lost its case at every level but SCOTUS because the bakery refused to make a generic-ass wedding cake for a gay couple. Had the bakery made the cake but refused to decorate it as the customers wanted, the case likely would’ve gone differently.
When a business opens its doors to the public, it offers a general selection of goods/services to the public that it must then serve equally. A bakery can’t bake a generic cupcake for a White customer, then refuse to bake that same generic cupcake for a Black customer. But when expressive speech is involved, things change. The right of a customer to expect service from public accomodations can’t, and shouldn’t, revoke someone else’s right to decline expressing speech with which they disagree. If that weren’t true, a customer could force a print shop that serves the general public to print pro-Klan propaganda even if the shop would otherwise decline to print such speech.
No one should be compelled to express, or facilitate the expression of, speech with which they disagree. Selling a basic-ass cake doesn’t express anything; selling a cake decorated with a Pride flag does. For what reason should a baker with anti-queer beliefs be forced to violate their conscience and beliefs by decorating a cake with a Pride flag? And if you can justify forcing an anti-queer bigot to violate their conscience, for what reason should a baker with pro-queer beliefs be forced to decorate a cake with “Straight Pride” imagery?
Re: Re: Re:4 Re
Here is my fundamental disagreement with your position. I don’t think that adding expressive elements transforms commercial activity at a public accommodation into protected speech.
Under this logic it would seem that 303 Creative can refuse to serve a couple from other religions as well as mixed race couples? Is that so?
I think most of the hypothetical situations you posit from a ruling to the reverse are non-issues. Being a white supremacist is not a protected class and anyone is free to refuse them service. To counter all these hypothetical harms I have two points.
First, until last week everyone but SCOTUS believed we lived in the world you fear would be full of forced speech. There is a reason every other court ruled against the baker in masterpiece cakeshop and 303 Creative. It seemed to be working fine for everyone but those full of christian love.
Secondly there is a very real actual immediate cost of this ruling. Over 7% of the US population was told that because some people hate you, you are no longer equal citizens. I’m willing to bet the next case citing this as precedent will be the “right” to misgender transgender individuals.
Perhaps we will never agree, but I predict this decision will one day be on the list of top 25 worst decisions.
Re: Re: Re:5
Absolutely. At least if the website would be about their wedding or something. Speech is speech.
Not by the SC, they weren’t. This is about forcing someone to create or host speech they disagree with. We may not agree with that decision, but we cannot legally force them to create speech they don’t like. This applies to everyone.
Re: Re: Re:5
A government that takes for itself the power to say “you have to refer to this person as a man” also takes for itself the power to later say “no, you have to refer to this person as a woman”. All it takes is a shift of who is in power. I would remind you that the last 10 Presidential elections have split 5-5 between the parties. The 10 Presidential elections before that also split 5-5. The 10 Presidential elections before that also split 5-5. Whatever power the government has is power that can be wielded by the other side in the not-so-distant future.
I would prefer the government not micromanage what words I use to describe people. Not even if the government currently agrees with me on what words are proper.
Re: Re: Re:5
It would appear so, yes—and even though that would make her an even bigger bigot, that still shouldn’t prevent her from exercising her right to not be involved in the expression of speech with which she disagrees.
Being straight is, though. That’s why I pivoted to the “Straight Pride” example: If you can justify a government entity forcing anti-queer assholes to express pro-gay sentiments, you must be able to justify the reverse or else the logic of your argument falls apart. If the law must bind, it must bind everyone equally; if the law protects, the law must protect everyone equally.
Two things.
As I’ve explained before, and as I will apparently need to emphasize for your benefit: The Masterpiece had nothing to do with expressive speech.
The worst people and the worst speech deserve and require the most protection. The kind of people you mention still deserve the same rights (and legal protection thereof) as everyone else no matter what you or I think of them.
The funny thing is, that “immediate cost” also applies to everyone else. To wit: A gay web designer can now refuse to make wedding websites for straight people because of this ruling. And while this ruling’s limits will obviously be tested by future cases, right now, it proposes that someone invoking a protected trait—regardless of the trait or who invokes it—doesn’t justify forcing others to express speech with which they disagree. If you think that should be the case, you better be prepared to justify the idea of forcing a queer baker to put Straight Pride imagery on a cake because a straight customer asked for that.
I hate to break this to you, chummer, but that right already exists. It’s called “the right to free speech”, and I’m pretty sure you can look up a whole bunch of citations and precedent about how bigoted/hateful speech is still legal speech even (and especially!) if it offends you.
A decision where the court said the government could legally compel Ms. Smith to make a wedding website for a gay couple would easily be a far worse decision than the one we’re dealing with now.
Re: Re: Re:6
Well, I see now I wasted my time thinking there could be a civil discussion.
Re: Re: Re:7
I’d bet that you’re more pissed about how I’m siding with the rights of bigots to not express speech with which they disagree than about any perceived “incivility”. Rest assured that, as a queer person, I think Ms. Smith is a bigot who deserves to watch her potential wedding website business go up in smoke. But my queerness doesn’t mean I believe the government should force her to make a wedding website for a gay couple. Deal with it.
Re: Re: Re:8
I believe that’s called “integrity.”
Re: Re: Re:2
And even the SCOTUS decision focused on the Colorado commission having been deliberately dismissive of religious claims.
Re:
… is there a difference between selling someone a sandwich, selling them your skills as a plumber, and selling them your skills as an author?
Hint: Only one of those options involves the seller’s speech.
Yes, you are correct. Anti-discrimination laws don’t compel speech. Until people try to make them do just that.
Re: Re: Re
Well, first, to my knowledge authors generally aren’t public accommodations. They write and sell to publishers independently or they establish a contract with a publisher. Or they work as an employee of a company, which can dictate speech. So in your example anti-discrimination laws aren’t compelling speech.
Your example also fails to address the fact that the government wouldn’t be compelling any “speech” you weren’t already expressing. The author isn’t forced to sell a photo just because the customer is of a protected class.
Re: Re: Re:
Therein lies the central issue of this case: Ms. Smith wanted to create wedding websites as part of her web design business, but didn’t want to make such sites for gay couples because doing so would violate her conscience and beliefs. The state of Colorado stipulated that her refusal would result in legal punishment under the state’s anti-discrimination laws. Ms. Smith, then, would be compelled to either make a website for a same-sex wedding or avoid making wedding websites altogether. If you don’t see how the government using the threat of legal punishment to either compel speech or effectively push someone out of the marketplace is a bad thing, that’s your problem.
Code as speech
Although it was decided as “based on functionality”, it looks to me like this decision might call for revisiting Universal City Studios, Inc v. Corley. “Functional” speech is still speech.
Opinions?
Legal arguments here should probably be made by lawyers.
The standing argument presented here is just not congruous with prior precedent.
https://adamunikowsky.substack.com/p/contrived-cases-make-bad-law
Among other things:
303 Creative never made ANY wedding websites.
303 Creative never turned down anyone for a wedding website, because they didn’t make any.
It gets much, much more speculative than that.
Unikowsky is worth reading on this issue. It’s pretty clear that the author of this article isn’t a lawyer.
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Re:
Cathy is a lawyer. She’s just a lawyer that’s okay with lies if it gets her what she wants. No different from the bigots that are the Alliance Decending Freedom which brought 303 Creative all the way to this idiotic conclusion.
Re: Re:
It actually seems like you who’s ok with lies as you sit there and lie about me.
Re: Re: Re:
303 Creative and ADF based their case on a lie. They won. You like the decision that was reached based on the lie and have brushed off concerns about the lie. Ergo you’re okay with lies as long as they get you what you want.
Re: Re: Re:2
Assume for the moment that the lie was never told. (I know, I know: If things were different, things would be different.) How would that have changed the standing issue when standing was given because the Colorado state government said it would use the law to punish Ms. Smith if she refused to make a wedding website for a gay couple?
Re: Re: Re:3
Unikowsky addresses the multiple layers of speculation required to invent standing for this case.
Re: Re: Re:4
No, because the standing hinged entirely on Colorado admitting that it planned to go after her should she turn down such business. Standing was based entirely on that threat, not on that business actually having materialized (or not).
Re: Re: Re:5
Perhaps you should read what Unikowsky had to say on the matter before making the argument he easily refutes.
You’re a lawyer, allegedly. Do a bit of lawyering here.
303 Creative did not make websites for weddings at all.
In order for CADA to have come into effect, the following would have to occur:
303 Creative would have to actually make wedding websites.
They would have to specifically have a gay customer approach them – and not the thousands of other website builders (that’s just counting Colorado businesses).
They would have to refuse to make the website.
That customer would have to believe it was based on discrimination.
That customer would then have to file a complaint with Colorado.
ALL of those things must occur before Colorado would have possibly taken any action.
A hypothetical built upon hypotheticals and speculation, followed by more hypotheticals, does not satisfy Susan B. Anthony v. Dreihaus.
Re: Re: Re:6
And the Colorado state government said it would have punished Mr. Smith under the law were she to refuse making a wedding website for a gay couple. That admission alone gave her all the standing she needed.
Re: Re: Re:7
What part of “those things all had to happen before Colorado would’ve done anything” did you not understand?
What part of speculative acts that may or may not even happen do you not understand? Article III standing requires far more than layered hypotheticals.
Did you bother to look into the Driehaus precedent? Clearly not.
There was no case here. There was no controversy. Every alleged injury was based on nothing more than hypotheticals (and a big fat lie).
That’s a far cry from “imminent” harm for a pre-enforcement challenge.
Re: Re: Re:8
Colorado had already stipulated that yes, had Ms. Smith refused to make a wedding website for a gay couple, the state would’ve enforced its anti-discrimination law against her. Knowing she would face legal consequences might’ve made her feel compelled to make such a website. That’s why she sued: She didn’t want the state to tell her “express this specific speech or face a big fine”.
No one should be compelled by law to express, or facilitate the expression of, speech with which they disagree. “No one” includes “people with bigoted views”. If the law is to bind, it must bind us all; if the law is to protect, it must protect us all.
Re: Re: Re:8
Courts regularly accept pre-enforcement challenges on speech issues, because without them you get chilling effects. So you can stifle speech without the law being enforced.
Allowing pre-enforcement challenges broadly is necessary to protect speech rights.
Re: Re: Re:6
Which they say they want to do. I guess we’ll find out soon if they actually start doing so, but it’s not unreasonable to assume the plaintiff wants to do what they say they want to do.
You think that’s speculation? Rather, isn’t this inevitable if they make more than a couple of websites? And why does it matter how many website builders there are? There are hundreds of thousands of gay people in Colorado, probably, and I assume most of those website designers don’t specialize in marriage websites.
Which they say they would. Come on now, do you really think they’re lying about this part?
Do you expect the business to lie about the reason? Are you saying they must try to lie about the reason? Even if they did, would you expect the customer to believe such a lie? Especially if there’s enough volume that they turn away more than one such customer?
Do you expect this wouldn’t happen? Because, what, people in Colorado have shown they won’t litigate such matters all the way to SCOTUS? Hah. Instead they’ve shown that they will purposely try to buy from such a company just to generate a case. (And before you jump on that: yes, they have to try to buy from the company first to generate their case. That’s different because the worst that happens to them if they lose is they don’t get a cake; they won’t get fined by the government.)
Also: Did you read the dissent? Do you see the word “standing” anywhere in there? Do you think that the dissent would ignore lack of standing if there really was no standing? Because they sure weren’t afraid to bring that up in that other recent case.
Re: Re: Re:2
What part of
and
was incomprehensible to you? No actual website design request was required. All the important points were stipulated by the parties.
Re: Re: Re:2
There were two things referenced to justify standing. One was the lie you referenced. The other was the threat made by Colorado. Both the Supreme Court and the 10th Circuit ruled that the latter—which was not a lie and which I believe was stipulated to in the pleadings—was sufficient on its own to establish standing. As such, the lie was entirely irrelevant to this opinion.
For the lie to matter, it would have to be the only thing used to justify standing, or at least necessary given everything else offered, but it wasn’t.
Do I think the lawyer or the plaintiff should receive some repercussion for lying on court documents? Yes. However, that is separate from what this article is about and does affect the validity of the ruling in question.
Re: Re: Re:3
*doesn’t
I fat-thumbed the “Post Comment” button instead of the “Preview” button.
Re: Re: Re:3
Colorado could not argue in front of the 10th that the harm was speculative – as it absolutely was, because “Stewart and Mike” had allegedly already contacted the bigot’s business.
In contrast, the ADF argued in front of the District Court that 303 Creative would already be in violation of Colorado law (if they actually made wedding websites in the first place) because of the lie about having prospective clients already inquire.
You can sit there and claim the lie is irrelevant, except that’s complete horseshit, as it turned the speculative behavior of independent actors and hypothetical harm into an event which was already occurring.
Read Unikowsky’s post FFS. He literally covers this, and includes the court filing snippets proving every aspect of this argument.
Re: Re: Re:4
It’s funny how you think insulting me somehow proves me wrong. I stand by what I said; it is your analysis (and apparently that of whoever Unikowsky is) that is misplaced. No one ever needed to approach the web designer for the state’s threat to be enough for standing.
Colorado, or the courts themselves, may have a genuine concern about the litigants’ behavior. And perhaps some sanction might be imposed. But Colorado will be hard pressed to argue that the lie somehow induced a concession it would not otherwise have made. The law was designed to prevent the discrimination the web designer wanted to engage in to refuse to make a website for a gay wedding. And the state was open about its desire to enforce its laws in the situations they were intended for, as it could reasonably be expected to be. And that threat is all that was necessary for the courts to find standing, whether that situation had actually arisen already or not.
Re: Re: Re:5
You’re responding to a reply which wasn’t even addressed to you. Did you even notice that?
https://www.techdirt.com/2023/07/06/in-303-creative-by-happily-helping-one-bigot-scotus-perhaps-inadvertently-helped-the-larger-fight-against-bigotry/#comment-3106361
Try that one.
Beyond that, I have neither insulted you, nor relied upon the non-existent insult to argue that you’re wrong.
The District Court flatly rejected your claim of standing, as have other, more prolific lawyers. Yet all you come back with repeatedly is “they had standing.”
Maybe you should address the actual criticism of your analysis instead of just repeating your conclusion. What a crazy idea!
Re: Re: Re:6
And yet, the one court that matters above all others didn’t. You can say it happened because of ideological reasons, but it still happened; that’s a fact you and this guy you’re citing as Word of God on the matter will have to accept.
Re: Re: Re:7 Two courts, actually
The 10th Circuit found standing too… and then used it to rule against her. The only thing SCOTUS did was reverse on the merits.
Re: Re: Re:6
So was I. That’s common practice here. Did you even notice that?
Other lawyers, the Supreme Court, and the 10th Circuit—which ruled against the plaintiff, by the way—say otherwise. And the 10th Circuit and Supreme Court have more authority over this than a single district court judge.
With an explanation as to why they did based on the courts’ decisions in this case and past precedent.
Except the criticism is based on facts that are entirely irrelevant to the analysis. I could agree with most of it without it having any impact whatsoever, and the rest involves things that are untrue and/or not relevant at this stage of the litigation.
Re: Re: Re:7
The 10th was the only court to actually decide in favor of standing. SCOTUS did not rule on it because it wasn’t argued that they lacked it.
Get your facts right.
Re: Re: Re:4
No. That wasn’t what was argued. This was about the government’s threats about future business. This doesn’t require any past contacts. Did you even read the decision?
Re: Re: Re:5
“Colorado could not argue in front of the 10th that the harm was speculative…”
“No. That wasn’t what was argued.”
Duh? That wasn’t argued in front of the 10th because they couldn’t do so.
Speaking of bothering to read, perhaps you should do so before responding.
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Bigotry isn't a protected class
Is the author of this article under the impression that being a bigot is a protected class like sexual orientation is because if it isn’t the whole premise of the piece falls apart.
Re:
No, it doesn’t. Nothing about this required the plaintiff to be of a protected class, only that the conduct at issue would be expressive, thus implicating the right to free speech.
Re:
i don’t imagine you are capable of understanding the case, ruling, or article at this time.
Re: Depends on how you spin it...
Sadly it’s far too easy to come up with a few steps to turn ‘bigot’ into a protected class without changing the definition or adding to it, all it would take is a string of agreeable judges.
Step 1: ‘My actions, which some would call ‘bigoted’, are based upon the rules and guidelines imposed upon me by my religion.’
Step 2: ‘Religion is a protected class.’
Step 3: ‘Therefore to punish me for my ‘bigotry’ and/or try to force me to stop engaging in it is to attempt to quash my ability to exercise my religion freely.’
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Oh fuck off.
The non-bigot's recourse is: don't patronize or serve bigots
I started out believing this decision was wrong, but am now convinced it is right, thanks to Cathy’s piece, and her and others responses to people who made the same objections I had/have. E.g. I too believe SCOTUS will flip the moment the parties are reversed, but as Cathy says, we will have to wait and see.
So since we should not put govt in the business of enforcing speech mandates or restrictions, we must fight bigotry in the only unassailable way: do not give bigots your custom. There are multiple ways to do this, many being cumbersome, or prone to inaccuracy or lawsuits (like a national bigot registry).
I think the best way available to all is to flush them out on first approach – ask them if they discriminate against anyone for any reason, and give examples like sexual orientation.
If they say yes, ask them to be specific. If you don’t like what you hear, tell them why they won’t get your business and leave.
If I were in business, I would respond to that query by saying I don’t serve bigots, and give examples of the kinds of bigots I would not serve. So it cuts both ways.
Unfortunately, it doesn’t look like there are any confrontation-free shortcuts to “Don’t serve or patronize bigots”.
And as always, I blame the people who didn’t vote all these years for the mess we are in. We got here because too many ordinary people were too lazy or indifferent to vote, because the bigots were not gunning for them.
Re:
That’s a reasonable approach (and when done against people you support, of course leads to cries of “cancel culture”). Depending on the size of the business, it can be a tough row to hoe, but the Bud Light and Target cases show that even huge businesses can be affected.
The good thing is that for the most part, bigoted businesses are rare enough that there are alternatives available for would-be customers, and most explicit bigotry is unpopular even among people who hold views that their opponents consider to be bigotry. (Even people who have antisemitic biases probably would not approve of “No Jews Allowed” signs.) That means that cases like 303 Creative and Masterpiece Cake Shop are essentially show trials; they are performative on both sides trying to establish bona fides with their supporters.
Re: Re:
Partly, yes. But at least with 303 Creative, we have a ruling that tells the government it can’t compel people to express, or facilitate the expression of, speech with which they disagree. That seems like an important point to make—especially in defense of people with offensive beliefs, who deserve such protection even (and especially!) if we wish they didn’t.
Re: Re: Re:
I wish there were a way to punish legislators who pass blatantly unconstitutional laws. When you swear an oath to uphold the constitutions of the United States and your own state, you should not be violating that oath by your lawmaking. That goes for both things like the 303 Creative public accommodation laws, and all the drag show bans. The constitution is meant to protect all citizens from such abrogations of freedom.
Re: Re: Re:2
Two things.
With respect to this ruling, where is the line between expression and non-expression in the following scenario?
Suppose Alex and Morgan are going to get married. They are a gay couple, and they want a wedding anniversary website. They seek the services of a website designer who is against gay marriage. The couple deliberately deceives the designer into believing that the marriage is a straight marriage. The gay couple gives the designer the wrong pronouns and provides images which have been edited to make the couple “look” straight based on previous conventions of gender (even though gender can’t be reliably discerned from appearance). After the designer declares that the website is finished, Alex and Morgan reveal the ruse. They provide the designer the correct information and images and tell the designer to keep the same design, but replace all of the inaccurate details with the correct ones. The website designer refuses to work on the website further, cancels the deal, and demands the original payment for the expended effort on the supposed grounds that selling such a website would have the designer make pro-gay-marriage expression. The couple sues to force the designer to finish the website with the correct details.
In my hypothetical scenario (constructed to be contentious), would this Supreme Court rule in favor of the gay couple in light of the 303 Creative v. Elenis ruling? I would like that to be the case, but I’m still worried that the result would be otherwise. In my understanding of the 1st and 14th Amendments, the expression manifested by the website design should not be considered “pro-gay-marriage expression” nor “pro-straight-marriage expression”; all that would change about the website in the gay couple’s desired result would be the factual details about the couple and the marriage. (At worst for the gay couple’s argument, the website design might be considered “pro-straight-marriage expression” even after the correct details of the gay couple would be added. I don’t think that this is an appropriate framing though.)
Here’s an analogous hypothetical about cakes to emphasize my point:
A baker who is against gay marriage offers pre-made cake designs for anniversary cakes. Whenever a customer asks for one of those designs, the baker adds the factual details of the couple and the anniversary (names, years, etc.). If the baker agrees, the customer can ask for modifications to their specific cake’s design. Suppose that a gay couple (such as Alex and Morgan) seeks an anniversary cake from this baker. The gay couple chooses a pre-made design offered on the menu or behind the display windows. Only Alex is in the shop, and Alex lies that the couple is straight. Alex tells the baker the names (Alex and Morgan), the years (2020-2023), and a generic message (e.g. “Happy 3rd anniversary!”). The baker is ready to put all of these details on the cake according to the design (cake body, colors, decorations, etc.). Then Alex reveals the truth that the couple is gay. In response, the baker refuses to sell the cake on the supposed grounds that putting the requested details about the anniversary and couple on the cake without changing the design itself would have the baker make pro-gay-marriage expression. The couple sues to force the baker to sell the cake according to the design with the requested details, which were details any anniversary would involve.(The custom message “Happy 3rd anniversary!” should not be considered pro-gay-marriage nor pro-straight-marriage expression. It’s a generic message applicable regardless of the genders of the couple.) Would this Supreme Court rule in favor of the gay couple? I hope so, but again I have doubts.
Re:
Probably not. The ruse was designed to make the website designer unknowingly facilitate the expression of speech that the gay couple knew the designer would reject otherwise. That deception on the part of the gay couple—besides being a dick move in its own right—would likely make any judge side with the website designer.
And yet, it is still expressive speech. Telling a married gay couple “happy anniversary” can be construed as approval of their marriage; the government shouldn’t—and currently doesn’t!—have the right to make anyone express such a message, even in commerce.
The use of deception and trickery to prove someone is a hypocrite or a bigot should never rob that person of their rights. If the law is to bind, it must bind us all; if the law is to protect, it must protect us all. Anti-queer bigots deserve the same right to refuse expressing (or facilitating the expression of) speech with which they disagree as queer people.
Seeing that discussion in the Insider chat over to the right. So it’s already starting and you just want to blame Sotomayor when what she said was gonna happen is actually happening, instead of blaming the bigoted wing of the Supreme Court, Cathy? What is wrong with you?
Re:
I hate that this anti-queer/anti-trans shit is happening now, but let’s not assume that every business is going to do that shit—or that the Supreme Court will give license to let every business that shit. The ruling in 303 Creative is about expressive speech; whether giving someone a haircut qualifies as such will most likely need to be settled in a court of law. Besides, chances are good that the amount of business that salon takes in from owning its bigotry might be outweighed by the amount of business it’ll lose for the same reason.
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Yes or No, Stephen: Do you think that the current Supreme Court would actually rule in favor of trans rights?
The ACLU predicted that this would be one of the outcomes if the Supreme Court ruled in favor of 303, that the judiciary would get bogged down in court cases about what is and isn’t expressive and give people the right to discriminate.
It’s a Goddamn mess based on a lie, and the notion that this may become a good thing and Texas and Florida’s Internet-compelled-speech laws will be brought down thanks to this ruling and that I’d be able to get away with refusing straight couples and Christians if I offered “expressive” services? This is you and others pissing on my head and telling me it’s raining.
This ruling for 303 is going to hurt a lot of good people before it helps anybody, if it helps anybody at all. John Roddy had a point:
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I think the current SCOTUS would like to rule against trans people, yes. But if it were to do so in a situation like the one in that article, that ruling would destroy the foundation of literally every anti-discrimination law in the country. I’d prefer to believe even the current SCOTUS wouldn’t want to open the door for blatant bigotry of all kinds in public accomodations.
As much as I loathe what 303 Creative stands for, I’d rather not have their bigotry used as an excuse to greenlight compelled speech. If that means we’re going to see that sort of shit, so be it.
Reminder: Even if the lie had never been told, standing was given due to Colorado admitting that it would punish 303 Creative for a refusal to make a website for a same-sex wedding. The mess was based on the idea that a state government said it would use its power to either compel speech from a business owner or punish her for her refusal to express speech with which she disagreed. If you think she should’ve lost and been forced by law to express that speech, you need to ask yourself if you’re comfortable with the government forcing a gay baker to decorate a cake with “Straight Pride” messaging.
I’d still rather have it on the books as-is than have it on the books in favor of compelled speech. That’s not a popular sentiment, and I understand that. But it’s the only sentiment I have because if I were to approve of compelling speech from the worst people, I couldn’t logically disapprove of compelling speech from everyone else without being a hypocrite.
I want to see 303 Creative go down in flames. But I refuse to shred the First Amendment for the sake of starting that fire.
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You haven’t been paying attention to the current Supreme Court then.
Clogging the court up with lawsuits and challenges so enough leak through, turning certain services into “expressive” ones to limit rights of queer and trans folks to use those services, and chip away at anti-discrimination laws, is the goal.
Fun fact: 303 Creative is gonna be used to fuck over queer people and it’s gonna be a double standard. Queer and trans people will be forced to engage in compelled speech while the cishets are the only ones who’ll have those true First Amendment defenses against compelled speech that you naively think will be applied equally.
Sure, your current stance means you wouldn’t be a hypocrite. But “not being a hypocrite” is different from “being a good person”. Whenever you so outwardly proclaim your support for the First Amendment and wanting everyone to be able to speak their mind no matter what, ad nauseam, all I can hear is “Look at me, look how morally good I am as an American, comments section!”. Supporting the First Amendment to “Suicide Pact” levels is not what I’d call “being a good person”.
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I’m well aware of this. But that won’t change my stance on the matter. No one should be compelled by law to express, or facilitate the expression of, speech with which they disagree—and yes, “no one” includes bigots.
Of course it will. No queer person with any goddamn sense is going to use 303 Creative as an excuse to deny service to cishets as a group. But…
…the ruling can (and should) also protect queer people from having to accept service from a bigot who wants to make queer people express anti-queer speech.
Would you rather I stand on the idea that compelled speech is a good thing so long as we’re limiting that idea to “bad people”? I can’t do that. I won’t do that.
No person should ever be compelled by law to say or express things with which they disagree. The government should have no more right to make a white supremacist say “Black people are great” than it should have to make a Black person say “White people are the superior race”. I will stand on that principle even if it means I’m some sort of “queer traitor” because one can only stand for a principle if they do so in the worst circumstances.
Neither is “supporting and enforcing the First Amendment unless someone is a bigot”, but that’s your problem. Me? I don’t support 1A to “suicide pact” levels—I support it in the sense that the same rights afforded to me must be afforded to people who hate my fucking guts, and that includes the right to not be compelled into speaking against one’s conscience and beliefs. Even the worst anti-queer bigot should have the right to refuse expressing the idea of “gay people are normal”.
If the law binds, it must bind everyone equally; if the law protects, the law must protect everyone equally. The U.S. legal system doesn’t always live up to that lofty notion—to that, I freely admit. But in this particular context, I’d rather we try to accept that notion, because nothing good can come from letting the government compel you to say something that all but spits on everything in which you believe.
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The ruling can (and should) protect queer people, but it won’t. You know that. The ADF, the conservative courts and judges in league with them, will not let queer people be protected. The intent of this case was, as has been stated multiple times, to lay the foundation for killing off antidiscrimination law and general protections against discrimination.
I cannot accept that notion because the evidence at hand shows that the law will not bind and protect everyone equally, and the people in the courts right now and the well-heeled asshole orgs like ADF do not want it to bind and protect everyone equally.
Your noble stance and principles run into the wall that is the current reality that we live in.
The raft of litigation that 303 is going to bring about, it will leave queer people like us with questions and confusion as to what rights we have to request services from others and in a wide range of public accommodations, and this shit will go on for years as the ADF and other scum search out test cases. The years of uncertainty and anxiety over what will get struck down and what will remain, all based on something as utterly malleable as what is or isn’t “expressive”, is not worth the free speech “win”.
Do any of your friends online know that you’re fine with court decisions like this and that you argue for free speech to this level? Do you ever share your thoughts on cases like this with them? Or do you keep it hidden from them, safe and snug over here in this comments section because you know that looking them in the eye and telling them that the amount of legal uncertainty that they’re gonna face over the coming years is fine because “free speech” is something that they’d get pissed off at you for even suggesting?
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To add on: Like, for real, do you think that the Texas Supreme Court is going to let the matter of what the decision of 303 Creative says get in the way of ruling against queer people?
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I don’t know that with the certainty of God. I can assume this will be the case when SCOTUS gets handed a case that would allow it to rule against the rights of queer people. But for now, the facts in hand say queer people are (or at least should be) protected from being forced to express speech with which they disagree.
I doubt even an ultra-conservative Supreme Court would be gung-ho to strike down all anti-discrimination laws. To strike down those protections for queer people, the court would absolutely have to strike them down for every other group because they can’t destroy the foundation of those laws for one group alone. Even Clarence Thomas probably doesn’t want to be told “leave this establishment now” only because he’s Black.
I can accept that groups like ADF want to make sure the law is inequal. I can even accept that the GOP has worked for decades to reach a point where SCOTUS can turn the Republican fever dream of a return to the 1950s into a reality. But I refuse to play into the doomer-esque fatalism that anti-queer regression is an inevitability.
The belief that the law must bind and protect equally is idealism; that, I can admit. But I hold onto that idealism even as reality threatens to shatter it because to lose hope that we can make any progress is to kill one’s soul. You can’t and won’t make me give up my light in the darkness no matter how many insults and how much despair you throw in my direction.
It likely won’t. Proportionally, few public accomodation businesses traffic in the kind of “expressive speech” as web designers, T-shirt printers, and bakeries that offer custom decorations (among other such businesses). The same goes for public office roles like handing out marriage licenses: A government employee can hardly be said to be approving of same-sex, interfaith, or interracial marriages by doing their duty in approving a license for such couples. The ADF can try to push their bullshit, but unless it can make a strong case for refusal of service that somehow only affects queer people but somehow can’t affect Jews or Black people or women, it’ll have one hell of an uphill climb in tearing down all of the laws that protect those groups (in addition to queer people) from discrimination.
Everything has a price. That includes victories. My stance on this issue is rooted in the idea that even if it helps bigots, a ruling that protects the rights of people to avoid being compelled to speak against their conscience and beliefs is a good ruling. If I reject that notion and fold on my principles, all I’ve done is proven that I’m willing to give up my principles when things get rough. That doesn’t make me anything but a coward. And I’ll own up to being a bitch in a lot of other ways; that much can be confirmed by anyone who knows me well enough. But when I stand on a principle upon which I am willing to die, I won’t give it up without a fight. You won’t make me crumble by telling me shit’s fucked because everybody knows shit’s fucked. Handing me the noose of fatalism won’t make me want to use it.
Three things:
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Actually, I’mma head any replies to this off with one more post, then I’m bowing out because I’ve spent way too much of my time on this article’s comment section.
The principle I hold to in this discussion is simple: No one should be compelled to express, or facilitate the expression of, speech with which they disagree. That principle should apply to all people equally: If a conservative Christian web designer is protected from being forced to make a wedding website for a same-sex couple, a gay web designer should be equally protected from being forced to make a website for an anti-queer organization.
Yes, I think this ruling will likely be applied inequally to protect only certain groups of people from compelled speech. Yes, I think the marginalized will find themselves on the short end of the stick in that regard. No, that doesn’t change my perspective on the principle at hand: Whether someone’s views on queer people are abhorrent as hell doesn’t justify forcing them by law to express pro-queer speech.
This position is idealistic as hell, and the United States is where idealism goes to die from a combination of bullets, lead-poisoned water, and capitalism-driven starvation. But it remains a position on which I stand because the logic is sound. Neither a queer person nor a bigot should have the right to force the other into speaking against their beliefs and conscience.
The ruling in 303 Creative will lead to a lot bigots crawling out of the woodwork to test the limits of how much they can discriminate. The chances of non-discrimination protections for queer people being rolled back is significant, given the political leanings of both the judiciary in general and the Supreme Court in particular. But that bullshit can’t lead us to abandon a solid principle; to suggest that we should force bigots to express speech with which they disagree or go out of business is to suggest that compelled speech is a good thing so long as “the right people” are compelled to speak.
I can’t sign off on that position. I won’t sign off on that position. If that means I have to agree with a ruling that will be used to justify discrimination against a queer person like me, I accept that fate. But I refuse to compromise on and discard a solid principle because it also applies to the people who would hate me for being queer. My feelings about those people and their bigotry should never deny them the benefit of the law.
To the AC in this reply chain: Don’t bother replying. I’m finished.