Fake Gay Marriage Website and SCOTUS Ruling

[Bomb#20]

"If we don't believe in free expression for people we despise, we don't believe in it at all." - Noam Chomsky

Opening a business to create websites for other people is not free expression. It's directed expression.

What is your criterion for labeling other people's expressions "directed"? And do you think there's something in the Constitution that excludes expressions from First Amendment protection when they satisfy your criterion?

The website creator is expressing the thoughts and feelings of the person who requested the website. They may add their own artistic flourishes but the main message is from the person requesting the work. It's like someone translating one language to another.

So does that mean that in your view, when Katharine Graham published the Pentagon Papers, that was "directed expression", not "free expression", because she was expressing Daniel Ellsberg's thoughts rather than her own? So the First Amendment shouldn't have protected her, and Richard Nixon should have been granted an injunction imposing prior restraint against the Washington Post?

 

[Loren Pechtel]

Medical situations. Do you think nurses and doctors can just willy nilly not treat gay people and keep their jobs?

How do you figure that a nurse or doctor treating a patient qualifies as them expressing a view in support of homosexuality?

If one thinks homosexuality is a mortal sin, then helping a homosexual stay healthy is promoting sin.

There's a nuance in here that I'm having trouble expressing. It seems clear to me that treating an illness has no connection to one's views on sexual orientation... but that creating a product for a wedding does have a connection to one's views on sexual orientation.

Why? Both situations involve providing a service or a good.

As to the rest of your response, disallowing people to use religion to discriminate against others in commerce is not discrimination against religion or the religious. No one is forced to believe anything against their will.

I think she's expressing it fine and you just don't want to see it.

She and I are taking approximately the same position: Creativity is involved in providing the good. Not merely in producing a standard good.

 

[ZiprHead]

"If we don't believe in free expression for people we despise, we don't believe in it at all." - Noam Chomsky

Opening a business to create websites for other people is not free expression. It's directed expression.

What is your criterion for labeling other people's expressions "directed"? And do you think there's something in the Constitution that excludes expressions from First Amendment protection when they satisfy your criterion?

The website creator is expressing the thoughts and feelings of the person who requested the website. They may add their own artistic flourishes but the main message is from the person requesting the work. It's like someone translating one language to another.

So does that mean that in your view, when Katharine Graham published the Pentagon Papers, that was "directed expression", not "free expression", because she was expressing Daniel Ellsberg's thoughts rather than her own? So the First Amendment shouldn't have protected her, and Richard Nixon should have been granted an injunction imposing prior restraint against the Washington Post?

The press already has a special place in the constitution that gives it its rights.

 

[laughing dog]

Medical situations. Do you think nurses and doctors can just willy nilly not treat gay people and keep their jobs?

How do you figure that a nurse or doctor treating a patient qualifies as them expressing a view in support of homosexuality?

If one thinks homosexuality is a mortal sin, then helping a homosexual stay healthy is promoting sin.

There's a nuance in here that I'm having trouble expressing. It seems clear to me that treating an illness has no connection to one's views on sexual orientation... but that creating a product for a wedding does have a connection to one's views on sexual orientation.

Why? Both situations involve providing a service or a good.

As to the rest of your response, disallowing people to use religion to discriminate against others in commerce is not discrimination against religion or the religious. No one is forced to believe anything against their will.

I think she's expressing it fine and you just don't want to see it.

She and I are taking approximately the same position: Creativity is involved in providing the good. Not merely in producing a standard good.

Medical treatment is no less a creative activity than web design, so your response is off point.

Moreover, in my view, creativity is irrelevant in this commercial situation.

 

[TomC]

Moreover, in my view, creativity is irrelevant in this commercial situation.

So do I.
Religious beliefs as well.

Do you understand why I don't want the government to have the power to enforce behavioral codes? Whether it's "separate but equal" drinking fountains or fancy pastries?

I don't trust the government very much. Especially not these days. The slippery slope I see is not a reversal to 1965. It's letting the "outrage industry" dominate society. That's what I see happening.
Tom

 

[ZiprHead]

I don't trust the government very much. Especially not these days. The slippery slope I see is not a reversal to 1965. It's letting the "outrage industry" dominate society. That's what I see happening.

Perhaps some new glasses are in order for you.

 

[laughing dog]

Moreover, in my view, creativity is irrelevant in this commercial situation.

So do I.
Religious beliefs as well.

Do you understand why I don't want the government to have the power to enforce behavioral codes? Whether it's "separate but equal" drinking fountains or fancy pastries?

I don't trust the government very much. Especially not these days. The slippery slope I see is not a reversal to 1965. It's letting the "outrage industry" dominate society. That's what I see happening.
Tom

Well, then you have a real problem because law is basically a form of behavioral code. Prohibiting discrimination based on _____ is a behavioral code, regardless of the blank.

 

[Bomb#20]

Curious, what is a "pro-gay message"?

...and how does a wedding website send such a message about the website's designer?

Who the bejesus said it was sending "a message about the website's designer"?

When I was a kid, the government told me to recite a pile of drivel starting with "Our Father..." and ending with "...ever. Amen". That was a pro-Christian message. If someone objected that it was inappropriate and a violation of civil rights for a government to order children to send pro-Christian messages, would you demand to know how compulsory school prayer sends a message about a school child?

If a black man marries a black woman, is the designer of their wedding website sending a "pro-black message"?

Context matters. The designer of their website is sending a pro-that-particular-marriage message. If she were doing this in the context of a widespread debate among competing cultural forces in society in which the issue of whether black people should be allowed to get married were controversial, then of course a message in favor of the black people Alice and Bob getting married necessarily implies that message being in favor of black people being allowed to get married.

But if you feel the need to divorce the present discussion from its wider context, feel free to swap out "pro-gay message" from my earlier post and swap in "pro-the-particular-gay-marriage-someone-hits-her-up-to-endorse message".

What if the designer doesn't know that the couple in question are black? Is he still being cruelly and unconstitutionally forced to "speak" in favour of blackness?

You can drop the scare quotes -- pretending that composing and writing out original promotional html does not qualify as speech is asinine. And no, obviously, if he doesn't know they're black then his website isn't going to indicate it's a black wedding, and if he doesn't know they're black then he's not being forced -- there's evidently no civil rights commission breathing down his neck and threatening him for declining to serve a black wedding.

If I rent a house, and hang a communist flag in my window, is my landlord sending a "pro-communist message"? Does he have a First Amendment right to cancel my lease? Am I forcing him to speak in favour of communism, even if he doesn't know about it?

That's kind of a bizarre analogy, since your landlord didn't design the communist flag. Moreover, nobody is claiming the web designer can sell a couple a generic fill-in-the-blanks template and then has a First Amendment right to take it back and make the couple stop using it if they subsequently hang out their gay identities in the template's windows. Moreover, the law prohibits discrimination in public accommodation; it doesn't prohibit discrimination in speaking on your behalf. So as a tactic in their power grab the authoritarian anti-rule-of-law fascists on the side of Smith's non-existent would-be clients are predictably trying to expand the "public accommodation" category to include unwilling people's linguistic creativity, and that of course is a contentious issue; but whether renting out a house qualifies as public accommodation is not in contention.

But as far as your scenario goes, I expect he can't cancel your lease over this unless he included a clause in it in which you promised not to hang a communist flag in your window; and he can undoubtedly decline to renew the lease when its term is up. (In the U.S. For all I know, maybe communists are a protected group in Australia.)

 

[bilby]

Prohibiting discrimination based on _____ is a behavioral code, regardless of the blank.

Prohibiting armed robbery is a behavioural code.

 

[Elixir]

Who the bejesus said it was sending "a message about the website's designer"?

Well, according to the plaintiff’s implication, that would be GOD. You’re not going to argue with GOD, are you?

 

[TomC]

Who the bejesus said it was sending "a message about the website's designer"?

Well, according to the plaintiff’s implication, that would be GOD. You’re not going to argue with GOD, are you?

I don't care what her motivations were.

I'm not in favor of giving the government that kind of power.
Tom

 

[Bomb#20]

As far as I know, no saints have established colonies anywhere in the world.

Salt Lake City - Wikipedia

en.wikipedia.org

 

[Toni]

As far as I know, no saints have established colonies anywhere in the world.

Salt Lake City - Wikipedia

en.wikipedia.org

Like I said....

 

[Toni]

I don't trust the government very much. Especially not these days. The slippery slope I see is not a reversal to 1965. It's letting the "outrage industry" dominate society. That's what I see happening.

Perhaps some new glasses are in order for you.

Please. It's not an either/or situation. Yes, the outrage machine is going fast and furious in all directions, not just anti-progressive or anti-regressive. Yes, that's a problem. Who the fuck cares what some hypocritical privileged white suburban raised country western singer sings that absolutely contradicts his earlier songs? The fact that I even know this exists should be a strong indication to everyone that this shit has gone far too far. And of course, it happens with more overtly malevolent issues as well.

Yep, there are plenty of people who want to take us right back to the 1950's post WWII USofA when everything was A-OK and Might (or was it white?) Was Right.

But honestly what is fueling ALL of this is simply people who are making money off of the latest outrage, whatever that outrage is.

 

[TomC]

But honestly what is fueling ALL of this is simply people who are making money off of the latest outrage, whatever that outrage is.

From BLM to the TeaParty...
Tom

 

[Bomb#20]

For me, freedom of speech is primary and essential to all other rights we hold. We can hold people equal, without freedom of speech, with all equally subjugated under the rule of law that coerces speech, dictates religion and political speech--something that neither of us wants. Or we can uphold freedom of speech/religion and allow everyone the right to protest, to worship or not, in the matter they choose, to write, to speak freely in support of or in protest against government at all levels. This must include accepting abhorrent speech and refusal to speak or write or create something that the creator does not wish to create.

That's how I see it. I realize that no one's mind is being changed on this.

Does freedom of speech to you mean one can
1) lie on the stand about the gov't,

Do the limits on freedom of speech mean one can
1) force someone to get on the stand and confess to what the government accuses him of,

2) promote terrorism,

2) force someone to denounce the government's enemy as a terrorist,

3) incite riots.

3) force someone to step out in front of a mob with a bullhorn and read them the Riot Act,

4) incite insurrection, or

4) force someone to denounce an insurrection and recite a government loyalty oath , or

5) yell fire in a theater or the DMV, or

5) announce that he supports the government's military conscription?*

(* The actual so-called "fire in a theater" case was not about a prohibition on yelling fire in a theater, but about a prohibition on speaking against the draft. Also, the so-called "fire in a theater" case-law was repealed by a later, wiser SCOTUS.)

Point being, you appear to be conflating forced speech with mere censorship.

6) refuse to write a report for one's company which has the legal right to fire you for not doing your job?

Yes, of course it does. Duh. And? Nobody has claimed Smith's nonexistent gay customers should have any legal obligation to pay her for the nonexistent website she didn't write for them.

My point is that there is no absolute freedom of speech. Almost every sane person accepts there are legitimate limits to the extent of free speech.

Almost every sane person accepts that there are a lot fewer legitimate lower limits on what you must say than upper limits on what you may say. Have you forgotten the whole "You have the right to remain silent" thing? If you want your counterexamples to "absolute freedom of speech" to be even vaguely relevant to the discussion at hand, you're going to need examples where it's legitimate for the government to punish people for not saying what it wants them to say.

 

[ZiprHead]

But honestly what is fueling ALL of this is simply people who are making money off of the latest outrage, whatever that outrage is.

So who is it exactly making money off of this besides the wedding website designer's lawyers and the religious right's preacher hucksters?

 

[laughing dog]

For me, freedom of speech is primary and essential to all other rights we hold. We can hold people equal, without freedom of speech, with all equally subjugated under the rule of law that coerces speech, dictates religion and political speech--something that neither of us wants. Or we can uphold freedom of speech/religion and allow everyone the right to protest, to worship or not, in the matter they choose, to write, to speak freely in support of or in protest against government at all levels. This must include accepting abhorrent speech and refusal to speak or write or create something that the creator does not wish to create.

That's how I see it. I realize that no one's mind is being changed on this.

Does freedom of speech to you mean one can
1) lie on the stand about the gov't,

Do the limits on freedom of speech mean one can
1) force someone to get on the stand and confess to what the government accuses him of,

2) promote terrorism,

2) force someone to denounce the government's enemy as a terrorist,

3) incite riots.

3) force someone to step out in front of a mob with a bullhorn and read them the Riot Act,

4) incite insurrection, or

4) force someone to denounce an insurrection and recite a government loyalty oath , or

5) yell fire in a theater or the DMV, or

5) announce that he supports the government's military conscription?*

(* The actual so-called "fire in a theater" case was not about a prohibition on yelling fire in a theater, but about a prohibition on speaking against the draft. Also, the so-called "fire in a theater" case-law was repealed by a later, wiser SCOTUS.)

Point being, you appear to be conflating forced speech with mere censorship.

6) refuse to write a report for one's company which has the legal right to fire you for not doing your job?

Yes, of course it does. Duh. And? Nobody has claimed Smith's nonexistent gay customers should have any legal obligation to pay her for the nonexistent website she didn't write for them.

My point is that there is no absolute freedom of speech. Almost every sane person accepts there are legitimate limits to the extent of free speech.

Almost every sane person accepts that there are a lot fewer legitimate lower limits on what you must say than upper limits on what you may say. Have you forgotten the whole "You have the right to remain silent" thing? If you want your counterexamples to "absolute freedom of speech" to be even vaguely relevant to the discussion at hand, you're going to need examples where it's legitimate for the government to punish people for not saying what it wants them to say.

My point was “freedom of speech” has limits and that no limit is sacred. I am sorry I was not more explicit because it would have saved you some time and effort.

 

[Bomb#20]

So the ultimate question is whether or not consenting to engage in creative work implies at least some degree of acceptance and support of the belief of the customer.

It has nothing to do with the beliefs of the customers. It is about refusing to provide a product to some customers while providing the same products to others.

No, it transparently is not. It is about refusing to provide a product to some customers while providing different products to others. That's why this all came up in the context of custom websites rather than prepackaged off-the-shelf doughnuts. A website where the designer writes "Alice and Bob are getting married" is a different product from a website where she writes "Cindy and Dave are getting married". If customers don't want that sort of customization to be part of the web-design service they're buying they can download generic template html for a lot less.

When you label those two different products "the same products", you are not providing us objective information about the products; you are providing us autobiographical information about your own personal subjective attitude toward them -- you are telling us that the differences that distinguish the products are not important to you.

It should go without saying that whether a distinction is important for purposes of correct legal analysis by a constitutional court does not depend on whether that distinction is subjectively important to some random citizen on a discussion board.

 

[Bomb#20]

My point was “freedom of speech” has limits and that no limit is sacred. I am sorry I was not more explicit because it would have saved you some time and effort.

This is a case about freedom not to speak. You are equivocating. Your argument encourages readers to incorrectly jump from the uncontroversial premise that freedom to speak has limits to the illogical conclusion that freedom not to speak has limits.