Tag Archives: Freedom of Speech

Analysis of the Decision in 303 Creative

11 Wednesday Aug 2021

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The decision of the 10th Circuit in 303 Creative LLC, et al. v. Elenis, et al. is a remarkable decision for its rejection what should be undisputed constitutional principles. As Ed Whelan wrote in Bonkers Tenth Circuit Ruling Against Free Speech, “It is difficult to imagine a ruling more hostile to free speech.”  The case involved a Christian web developer who said she was unwilling to make a webpage which celebrated a same-sex wedding.

This was not the case of someone who refused to serve a gay customer. The designer specifically stated that it was not the identity of the customer but the content of the message which was the issue: “303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will.”

The court found that the creation of the website was “speech,” “Appellants’ creation of wedding websites is pure speech.” This is important because in cases such those involving a baker or a florist, there was an issue as to whether the work itself (decorating a cake, arranging flowers) constitutes speech for purposes of the First Amendment. Thus, the speech clause of the First Amendment was unquestionably in play.

Second, the court found that speech at issue also entailed the plaintiff’s religious convictions,  “Ms. Smith holds a sincere religious belief that prevents her from creating websites that celebrate same-sex marriages.”

Free exercise of religion and freedom of speech are guaranteed in First Amendment. Having found speech and religion, it seems that the plaintiff should have easily prevailed. But here, the court found the government could compel speech (and also religious practice).

The First Amendment prohibits compelled speech. (United States v. United Foods, Inc., 533 U.S. 405, 410 (2001); see, Wooley v. Maynard 430 U.S. 705, 714-15, supra) The act of government compulsion as to speech is always demeaning and always wrong. (Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31 (2018) 138 S. Ct. 2448, 2464 (2018) [“When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178; see also Riley, supra, at 796–797, 108 S.Ct. 2667 (rejecting “deferential test” for compelled speech claims).”])

Since this case involves compelled speech, it seems she should have won, but she did not.

The court found that the law was a content-based restriction on speech, meaning that it prohibited certain speech based upon the content of that speech. With few very narrow exceptions (such as a true threats), content based restrictions are simply struck down.

And yet, the 303 court found the State of Colorado could compel Ms. Smith to publicly approve same sex marriage (or be barred from being a web-designer in the state), “We hold that CADA [the law at issue] satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.” The decision also compels Ms. Smith to contradict her religious beliefs and participate in a religious rite if she wants to conduct any business in Colorado.

How did this happen? How could a court find that the government can compel speech, forbid other speech and compel religious practice as the cost of doing business in the State of Colorado?

First, Ms. Smith’s solo operation had to be designated as a “public accommodation.”  The statute defines a public accommodation as a business which is open to the public, “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Such a definition runs contrary to the history of the meaning of the phrase “public accommodation.” Public accommodations entail public carriers (like a bus line), public accommodations (like a hotel on the interstate). The concept has a long history in American law and then English common law before that. And it is only recently that solo operators have become “public accommodations.”

But the court did more than turn her into a public accommodation, it actually turned her into a special sort of public accommodation: the monopoly, which by virtue of being a monopoly must be open to the public.

The nature of “public accommodations” and the way in which Ms. Smith became a monopoly will be discussed next.

A Draft Brief on the Importance of the Court Protecting Freedom of Speech and Religion

16 Friday Jul 2021

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I am currently working on a brief in a federal case involving the Virginia Values Act. This is a law whose effect is to require some to photograph a same sex wedding or sell book which advocates a particular sexual morality even when it conflicts with their religion to do so. Since the refusal in this instance is certainly the unpopular position (the law was made by the elected officials, which makes this the majority position), and since it would be surprising that some (or all) of the judges or their clerks would think a religious objection to bigoted if not immoral, it is necessary first to explain the importance of protecting these people and their opinions, even if the majority of the public and even if the judge (or clerk) believes otherwise. The First Amendment is put in place specifically to protect that which “we” find abhorrent.

We should also remember that freedom of speech and freedom of religion function when it is protected for all of us. If the government, at my request, has the power to shut down your speech, tomorrow the government will have the power to shut down my speech.

(This is a draft, so there will typos, missing words, and such. If anyone is kind enough to offer criticism, such as I don’t understand this sentence, please do. This also is not the entire argument. It is merely a preface.)

IT IS THE DUTY OF THIS COURT TO PROTECT THE INTERESTS OF AMICI PRECISELY BECAUSE THEIR BELIEFS ARE NOT THE MAJORITY POSITION

         When any two human beings come together in any sort of society, there will be things upon which they disagree[1]. When those disagreements are trivial, a preference for chartreuse over forest green, the disagreement is tolerated if it is noted at all. 

         The trivial warrants no response and thus causes no conflict nor needs any protection. 

         However, when we move to matters of greater concern, matters of religion, of politics, those matters which make us human by which we define ourselves[2], we find the grace of overlooking a distinction or even civil toleration difficult.

         In matter of impiety, Socrates must be sentenced to death. When one’s dignity is assaulted, Hamilton must die at Burr’s gun. When tribes differ in religion, war erupts. When politics clash, the entire world can plunged into war on all sides. And should political distinctions arise within a country, dissidents are “disappeared.” 

         Matters of human sexuality touch upon all these points at once[3]. It is undisputed by anyone that human sexual plays a fundamental point in religions. Buddhist monks are monks[4]. A man in Mali may have multiple wives[5], and a Roman Catholic priest in Italy may have none. The male priests of Cybele in the Roman Empire castrated themselves and dressed as women[6]. The ancient Hebrews were forbidden to dress as the opposite sex[7]. Shakers lived in a communal life; but also lived celibate lives[8]. 

         That human beings choose among these variations and far more is undisputed. It is also undisputed that the human beings who make these determinations do so honestly and in good faith. They believe that their personal good and the good of the society in which they live in part depends upon their moral decisions in the matter of sexuality[9]. 

         Moreover, the belief held by various people seem to be undisputable and matters of common sense. Even matters upon which we all hold to abhorrent and criminal are matters upon which others have disagreed. Pedophilia was tolerated among the Roman aristocracy. Moreover, the glorious history of the city of Rome included the kidnap and rape of the Sabine women. In our recent history, the members of Isis under the guise religion approved kidnap, rape, and slavery of women. Slavery was shamefully tolerated in the United States for nearly 100 years of nation (and longer when we count it in the colonies). Aztecs worshipped their god by murdering parents before children so that they could murder the child while the child was weeping. 

         How then will we resolve these matters? Our options range between (enforced) conformity of opinion and conduct or civil toleration. All decisions will entail a combination of both: conformity here, toleration there.

         We in America demand conformity among everyone in agreeing that pedophilia, kidnapping, rape, slavery, murder are utterly abhorrent and not to be tolerated under any circumstances. (And rightly so.) Our civil tolerance turns upon the concept of consent: a child does not consent; the victim of rape does not consent. 

         And while consent is the moral boundary which marks our degree of civil toleration when it comes to conduct; there is no need for consent when it comes to opinion. Indeed we hold that one may advocate for these matters provided they do not result in the conduct.[10]

         When it comes to what I think, believe, hold dear, or despise; I do not need your consent, nor do you need mine. I will make my decision about such things; you will make yours. The government will not become involved unless you infringe upon my conduct and either coerce or prevent me from making my own decision in such matters. 

         Only where your belief results in violence to my body or property will the government will the government impose itself. As Thomas Jefferson stated the principle, which has been repeatedly found in the law:

The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subjects to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.

(Thomas Jefferson, Notes on the State of Virginia, Query XVII, “Religion”)

         It is the resolution which we have reached in matters of religion and politics. The European wars between Roman Catholics and Protestants during the Colonial Period of America and the religious wars which are taking place in our time in many places do not have a place in America. In some other country, the people may take up weapons over opinion and religion. In our country, these things cannot be matters of war. It the job of the government is to keep the peace and permit both sides to hold vigorously disputed and contradictory position. 

         This toleration does not mean that each individual feels happy about that toleration. We each, confirmed in the commonsense and moral goodness of our own position, think those who disagree to be either mad or immoral. Thus, the temptation always arises to seek an imposition of conformity to our position. 

         That desire for conformity and the rejection of that conformity is made in good faith; it is made honestly. Should you and I disagree, we will seek to rescue the other from error (and from the concomitant danger to our society)[11]. If enough agree with me or with you, we will go to the legislature and demand a law prohibiting the exhibition of this dangerous, offensive position. 

         That is the nature of the world. Laws prohibiting blasphemy and lese majeste are not uncommon in history. The State Department has published advisements about current laws prohibiting blasphemy[12] and lèse majesté[13] around the world. The laws are always popular: A majority constituency is always pleased[14].

         And if it were not for the independence of the judiciary, such laws would be promulgated and enforced throughout this country. But there are courts: these courts were put into place precisely because the temptation to maximize conformity to the general will always be the most popular to reach a psychological state of comfort for the greatest number of people. 

         This is not to deny that the psychological state is a good. The distress that an honest adherent feels by those who disagree may be profound. It does feel degrading to hear and see those who disagree do so publicly.[15]

         But, however important that psychological well-being, even the psychological well-being of the greatest number, and however much the individual judge in personal life sympathizes with one-side in the debate, the duty remains that the individual having donned a robe and taken an oath has the obligation to protect the speech and religion of those whom the judge personally finds repellant. 

         As Justice Stevens wrote, “[T]he federal courts — and particularly this Court — have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” ( Harris v. Reed, 489 U.S. 255, 267 (1989), Stevens, J., concurring; Cobell v. Norton 212 F.R.D. 14, 20, (D.D.C. 2002) [“ the Court is mindful of its obligation to protect the free speech rights of defendants.”])

         Moreover, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2593) That is not a liberty which ends merely because you do not like or approve my identity, or because you find my identity, my opinions, or beliefs wrong. And where the political process will not act to protect fundamental rights to speech, to religion, it is the duty of the court to protect those rights even for those whose beliefs and opinions do repel the majority:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.

(Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2605.). The issues raised by the Virginia Values Act (the “VVA”) concern not merely speech and religion, but speech and religion which touches upon the most fundamental values as human beings and fundamental rights as those within the protection of the Constitution. As Justice Kennedy explained in arguing that same-sex marriage was protected by the constitution:

[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U.S., at 12, 87 S.Ct. 1817 ; see also Zablocki, supra, at 384, 98 S.Ct. 673 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574, 123 S.Ct. 2472. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386, 98 S.Ct. 673.

(Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).) The VVA (as applied to Amici) seeks not merely to give space to one opinion but to foreclose all others. The constitutional privileges and obligations of the courts which led to Obergefell establishing a right to same-sex marriage, likewise give protection to those who disagree with the decision, whose religious beliefs or conscience conclude differently. Indeed, the very importance and sensitivity of the subject and the importance to all involved is precisely why this Court must protect those interests:

As Stromberg and Lovell demonstrate, there are some purported interests — such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas — that are so plainly illegitimate that they would immediately invalidate the rule. The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-536 (1980); Carey v. Brown, 447 U.S. 455, 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).

(City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)) In the act of protecting the minority position, the Court protects the dignity of those persons as human beings:  “our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. ” (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 769 [citation and internal quotation marks removed])

         This dignity is upheld by means of the Court prohibiting the political branches from forbidding certain opinions and dictating others. In fact, by forbidding restrictions on speech – even unpopular speech — the Court upholds the legitimacy of the political branches by maintaining the democratic and republican ideals. 

         First, where citizens conclude that they cannot speak, that they cannot influence, they will begin to conceive of the government not as representative of them but as a tyranny that rules over them. 

         Second, the presupposition of a democratic system is that you have the same moral value as me: we are “created equal” and have equal merit to voice our opinions and give our vote. To the extent we have the power to shut-up or shut-down our fellow citizens using the power of the government, we undermine the legitimacy of the government. 

         Third, it protects the right to hear ideas with which I currently disagree:

The constitutional guarantee of free speech “serves significant societal interests” wholly apart from the speaker’s interest in self-expression. F irst National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information. See Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Saxbe v. Washington Post Co., 417 U.S. 843, 863-864 (1974) (POWELL, J., dissenting).

Pacific Gas Elec. Co. v. Public Util. Comm’n (1986) 475 U.S. 1, 8. It is because the issues raised by this appeal are of such importance to the people on all sides that the Court’s obligation is to make room for speech and religion (even if we will hear things which distress us):

If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint

Rosenberger v. Rector & Visitors of University of Virginia (1995) 515 U.S. 819, 831. The First Amendment is offended when anyone is kept from “marketplace”.

         It is that public marketplace, unregulated by the government (in almost all circumstances) that provides the response to those who readily support the law in question. Rather than obtaining government power to forbid my opponent to speak, the sides are to go to their fellow citizens (however much they think the other wrong) and persuade them. Likewise, they can both go to the public and persuade them: Do not patronize that photographer, do not buy books from that publisher, do not hire that painter, because they advocate things which should offend us all. 

         But the government may not do so. 

         The parties herein before the Court contend that the Virginia Values Act, however well meaning, however good for the greatest number, is also precisely the sort of law – when applied to these parties – which offends against the Constitution and which this Court has no choice but to strike down as applied to appellant and as applied to these amici of the Court. 

[1] The literature upon conflict, tolerance, social organization is immense. Plato and Aristotle, opined on the issue. Hammurabi and the Bible law out rules for what may and may not be done or thought. The issues at stake involve political theory, law, psychology (individual and social), et cetera. To provide an example of some contemporary overview of these issues as involved with legal one could perhaps start here: Pluralism and the Law, ed. Arend Soeteman and editor First Name editor Last Name or author special case (Dordrecht: Springer International Publishing, 2001), 1.

[2] “Finding oneself is a misnomer: a self is not found but made.” Jacques Barzun, From Dawn to Decadence(Harper Collins: New York 1972), 785 *****

[3] See, e.g., Carole M. Cusack, ed., Religion, Sexuality, and Spirituality: Critical Concepts in Religious Studies(New York: Routledge, 2016), 1; Mark Jordan, “Spiritual, Sexual—and Religious?,” Harvard Divinity Bulletin (Autumn/Winter 2019), https://bulletin.hds.harvard.edu/spiritual-sexual-and-religious/.

[4] Soko Morinaga, “Celibacy: The View of a Zen Monk from Japan,” Vatican, accessed July 15, 2021, https://www.vatican.va/roman_curia/congregations/cclergy/documents/rc_con_cclergy_doc_01011993_zen_en.html.

[5] Stephanie Kramer, “Polygamy Is Rare Around the World and Mostly Confined to a Few Regions,” Pew Research, December 7, 2020, https://www.pewresearch.org/fact-tank/2020/12/07/polygamy-is-rare-around-the-world-and-mostly-confined-to-a-few-regions/.

[6] Benedikt Eckhardt, “Meals in the Cults of Cybele and Attis,” in The Eucharist – Its Origins and Contexts, ed. David Hellholm and Dieter Sänger, vol. 3, Near Eastern and Graeco-Roman Traditions, Archeology (Tübingen: Mohr Siebeck, 2017), 1779-94.

[7] Deuteronomy 22:5.

[8] Erin Blakemore, “There Are Only Two Shakers Left in the World,” Smithsonian Magazine, January 6, 2017, https://www.smithsonianmag.com/smart-news/there-are-only-two-shakers-left-world-180961701/.

[9] “Decision” herein means one’s moral valuation of human sexuality. No inference is made that one chooses their sexual desires as one would choose a pair of shoes. Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2596 (“ Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”)

[10] See for example, The Atlantic at least obliquely raised a question about mandatory reporting laws for child pornography (Alice Dreger, “What Can Be Done About Pedophilia?” The Atlantic, August 26, 2013, https://www.theatlantic.com/health/archive/2013/08/what-can-be-done-about-pedophilia/279024/.) And the substance of the article was responded to by The National Review (Wesley Smith, “Normalizing Pedophila 2,” The National Review, August 27, 2013, https://www.nationalreview.com/human-exceptionalism/normalizing-pedophilia-2-wesley-j-smith/) The government permitted speech which would be at troubling to many and perhaps overwhelmingly unthinkable to others. The government then permitted a response. We could provide examples pertaining to slavery and racism.

[11] “We see this in the fact that things which were borne for centuries are now declared to be unbearable ….It is tempting for those out of sympathy with this turn to see it simply in the light of illusions; to see authenticity, or the affirmation of sensuality, as simply egoism and the pursuit of pleasure, for example; or to see the aspiration to self-expression exclusively in the light of consumer choice. It is tempting on the other side for proponents of the turn to affirm the values of the new ideal as though they were unproblematic, cost-free and could never be trivialized. Both see the turn as a move within a stable, perennial game. For the critics, it involves the embracing of vices which were and are the main threats to virtue; for the boosters, we have reversed age-old forms which were and are mode of oppression.” Charles Taylor, A Secular Age (Cambridge, Mass.: Belknap Press of Harvard University Press, 2007), 480.

[12] https://www.osac.gov/Content/Report/8a3d7716-5743-4f14-b430-195206ddb577

Security Alert: Peshawar (Pakistan), Online Threats Against Religious Minorities, ‘Blasphemers’

8/2/2020

[13] “Lèse Majesté: Watching what you say (and type) abroad” 8/29/2019 | Report  OSAC Analysis

https://www.osac.gov/Content/Report/e48a9599-9258-483c-9cd4-169f9c8946f5

[14] Rousseau, general will

[15]  It must be noted that such psychological distress is mutual. The sides have each issued an anathema upon the other. Each side sincerely believes the other benighted. And each side can justify the infliction of psychological distress upon the other with the justification that the other “deserves” to feel bad.