dismal said:
I believe in the earlier case (Masterpiece Cakeshop) the baker was quite willing to sell the gay people a cake.
You "believe" inaccurately. The baker refused to sell the gay couple any cake at all.
Not exactly. "As acknowledged by all parties, Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies; I just don’t make cakes for same-sex weddings.” (NRO - See Link at Bottom)
The baker apparently didn't object to making and baking a cake as long as it was not used in same-sex wedding receptions.
(In the Masterpiece Cakeshop case) Though the judge was sympathetic that cakes require artistry, he dismissed the idea that they constituted speech. In this case, the bakery refused to provide the cake before the couple could even specify what would or would not be on the cake, thus there is not even any speech to consider:
The ALJ, however, rejects Respondents’ argument that preparing a wedding cake is necessarily a medium of expression amounting to protected “speech,” or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to “an ideological point of view.” There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as “speech,” as would saluting a flag, marching in a parade, or displaying a motto. ...
Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. ...Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection.
http://thinkprogress.org/lgbt/2013/12/06/3035121/colorado-bakery-broke-law/
Maybe. While it is unlikely that just any cake would be considered an issue of free speech, in particular contexts it might be. Freedom of speech has been broadened by the courts to include any activity that is a "freedom of expression". As such, non-speech activities such art, dancing, singing, etc. are forms of protected "speech". Forcing someone to provide expressions against their beliefs, be it press releases, art, dancing, singing, etc. for the purpose of celebrating a wedding would clearly violate first amendment rights.
If the owner was specifically requested to provide an artistic expression, a "wedding cake" to celebrate the gay marriage should have been found to be a violation of the baker's first amendment rights - without or without a specific written message.
Interestingly, the above passage supports Jarhyn's position that the baker in the OP case actually has a good claim to refuse to write the hate message - as long as she baked the cake for the man.
True. Essentially in the case of the "hate speech cake" the baker was being forced to "publish" an opinion with which he/she disagreed. However, the same free speech protections for the baker might apply to the sale of any wedding cake whose abstract "expression" was to convey support or celebration of something the baker disagreed with, without or without the cake having a message in icing (see above).
Respondents argue that if they are compelled to make a cake for a same-sex wedding, then a black baker could not refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation; and an Islamic baker could not refuse to make a cake denigrating the Koran for the Westboro Baptist Church. However, neither of these fanciful hypothetical situations proves Respondents’ point. In both cases, it is the explicit, unmistakable, offensive message that the bakers are asked to put on the cake that gives rise to the bakers’ free speech right to refuse. That, however, is not the case here, where Respondents refused to bake any cake for Complainants regardless of what was written on it or what it looked like. Respondents have no free speech right to refuse because they were only asked to bake a cake, not make a speech.
BUT as I have pointed out, freedom of speech is MORE than just protection for explicit speech. The quoted opinion is attempting, vainly, to pretend there is a legal difference between coercion of someone to 'write a message' and indirect expressions of support.
It looks like the jerk-off in the OP article should have read the actual court ruling before trying to bully a baker into writing his hate speech.
But at the very least it will draw limits as too how much coercion, in the name of "tolerance", is tolerable. The "jerk-offs" loss is liberty's gain.
A couple who runs a bakery in Oregon has refused to provide a wedding cake for a same-sex couple planning to marry, claiming it’s against their beliefs. ...
...An Iowa lesbian couple is rightfully upset that a Des Moines baker refused to provide them with a wedding cake when they came in for a taste-test. Baker Victoria Childress told Trina Vodraska and Janelle Sievers that she could not do the cake because of her “convictions for their lifestyle,” claiming she was not discriminating against them, but just honoring her “walk with God.”
If you think there is some other baker out there that you "believe... was quite willing to sell the gay people a cake" you need to produce the evidence.
It seems clear, they sold bakery products to people who are gay, but would not sell a wedding cake that, in their mind, was going to be used to support a sinful act (a gay wedding).
There is a huge and obvious difference between anyone selling a product of what they consider to be legitimate and/or moral uses and a refusal to do so because the seller believes they will be used for illegal or immoral purposes.
These otherwise intelligent "finders of fact" are blindered to a clear and elementary distinction, for obvious reasons.
