Cathy Gellis 's Techdirt Comments

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  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 03:00pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 02:58pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 01:55pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 01:52pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 01:26pm

    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).

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 01:01pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 12:51pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 12:39pm

    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.

  • On the post: In 303 Creative, By Happily Helping One Bigot, SCOTUS (Perhaps Inadvertently) Helped The Larger Fight Against Bigotry

    Cathy Gellis ( profile ), 06 Jul, 2023 @ 12:03pm

    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.

  • On the post: The Warhol Decision: How SCOTUS Forgot The First Amendment & Turned Copyright Into A Liability Time Bomb

    Cathy Gellis ( profile ), 26 May, 2023 @ 09:41pm

    This is wrong

    "resolving the tension between it and the 1st is a matter of statute" No. When the First Amendment says, "Congress shall make no law..." that means that it can't decide by statute whether or not to comply with the First Amendment. The First Amendment trumps a statute.

  • On the post: The Warhol Decision: How SCOTUS Forgot The First Amendment & Turned Copyright Into A Liability Time Bomb

    Cathy Gellis ( profile ), 26 May, 2023 @ 07:11am

    Historically inaccurate

    The idea of copyright originated as a system of prior restraints in England under the Statute of Anne. This is incorrect. It REPLACED a system of prior restraints. Also, Blackstone articulated the admonition against prior restraints after 1709 (and probably would not have been publishable before). In other words, no, copyright doesn't entitle prior restraint, and the Founders did not allow it to. Any law passed under the authority of the Progress Clause was still subject to the limitations imposed by the First Amendment.

  • On the post: The Imbued Test, Or How To Know Whether Section 230 Applies

    Cathy Gellis ( profile ), 24 Mar, 2023 @ 08:43am

    If this “imbuing” test is how we should treat liability for purveying content, to be consistent, shouldn’t we apply it to all sorts of media enterprises? Why should the doctrine of “no responsibility” apply to taking money for promoting material on an internet platform, but not for newspapers and publishers of all content to have similar protection? Or is this just a way to favor internet communications over other types of content promoters? Mike's point about the scale is salient. I'd also suggest that the issue is not that we are overprotecting online platforms but perhaps UNDERprotecting offline ones.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 10 Dec, 2022 @ 07:55am

    It's not just this case

    First, while I agree the Supreme Court has lost its legitimacy, I would actually like them to get it back. Half the point of this post was articulating the right roadmap for them to follow to find in her favor, because if they either don't, or, find for her, but for the wrong reasons, it will further undermine them and rule of law for everyone. Secondly, there are many other cases that will hinge on the result of this one. It really, really, really isn't just about her or gay rights generally. It's about everyone's free speech in a ton of other contexts.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 10 Dec, 2022 @ 07:51am

    Oh really?

    If you are a writer who writes things for other people, like books, you have to write books for anyone who asks, no matter what they want that book to say? If you are are a newspaper that takes op-eds or letters to the editor, you have to run op-eds and letters even when you hate them? As I said in the post, the Supreme Court has already found that the answer to the latter question is no. And it wasn't a conditional no that bore on the specific message someone wanted them to express, or who the person was who wanted them to express it. If the case were about her refusing to deal with certain people as clients altogether, even if they wanted a website with an objectionable message, then maybe you'd have a point. But those are not the facts of this case, which is why it should not be the analysis applied to the case.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 02:07pm

    The way the math plays out

    I can't dispute that bigots will use every right they have to discriminate. But what I can say is that the only way the people they hurt have any chance to stand against them is by making sure, at least on paper, they have equally strong rights. If those rights are weakened, then by the same math you observed, the bigots will manage to be fine, but the people they hurt will end up at their disadvantage. The reason she needs to win is to make sure that doesn't happen to the people she wants to hurt.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 12:57pm

    It's not secular logic

    No, you'd actually get a rule that would better protect you (vulnerable people are the people who most needs their rights, including expressive rights, to be protected). Also, and I didn't get into this, but it would blow up in their faces and actually make it harder for the terrible MAGA states (FL, TX, etc.) to require the preferring of hateful speech. That's what's really at stake here, not Colorado's interest in defending the discriminated but the bad states' ability to add to the discrimination.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 12:53pm

    That isn't my argument at all

    "But your argument is expression and free speech should override public accommodations laws in a commercial setting." I've said no such thing.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:33am

    Yep, and...

    "Reading the myriad comments here it’s obvious that folks desperately want a certain result." The problem is that this cuts both ways. People who want to be able to discriminate, and those who don't want to be discriminated against, are focused so much on the case either ok-ing or forbidding that discrimination that they are missing what is actually at stake in this case, for everyone.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:30am

    It absolutely was a lawsuit dreamed up by cynical, hateful people. HOWEVER...

    It absolutely was a lawsuit dreamed up by cynical, hateful people. HOWEVER, if the Court manages to refuse to take the bait to codify their hate and instead focuses just on the speech angle, the irony is that it could produce a decision that will ultimately help better protect everyone's rights (including those who need to be able to speak out against discrimination).

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:27am

    The copyright issue actually cuts the other way

    "The webdesigner isn’t expressing the views of the client in the same way that they don’t own the copyright to the material if they were commissioned to do the design as work for hire. The typesetter is not exercising editorial discretion, they are doing work for hire. It can be creative work but it’s not editorial discretion. The typesetter isn’t speaking." Unless clearly specified in the contract, the web designer WOULD own the copyright in the website. In fact, people get copyright in their web designs all the time because law recognizes them as expressive enough to qualify. So if it is expressive enough to qualify for copyright, how could it not also be expressive enough to get First Amendment protection? (And even if the contract did make it a work for hire, it would only give the client the copyright, not obviate the copyrightability, because copyright law still inherently sees websites as expressive.)

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