Month: November 2017

Abridged. (Discussion of timely links sent by colleagues and friends.)

This month’s Abridged features a cyclist getting fired for giving the middle finger to President Trump’s motorcade, the methods law enforcement uses to prevent violent clashes between white supremacists and anti-fascist counter-protesters, and a lawsuit concerning a serious case of cyber-harassment.

Today’s theme:  Targeting Speech Without Targeting Content

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Louis C.K., Consent, and Safety Versus Autonomy

This week, I taught my Torts students doctrines related to consent, which is a defense to intentional torts like battery and criminal charges like rape.  This week, a comic hero of mine, Louis C.K., has been accused of violating multiple women without their consent.  Some of the accusations are conscience shocking.  Some of these accusations sound plausibly criminal, while others sound like they should not be actionable.  A deeper examination of the doctrine of consent — what it protects, and why we should be cautious about raising the bar too high on when it has been granted — is necessary to separate the illegal from the creepy.  Harmful is not the same as actionable, for important reasons that balance the tension between protecting safety and promoting autonomy.

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Rules and Results in Masterpiece Cakeshop

 

Masterpiece Cakeshop v. Colorado Civil Rights Commission illustrates the tension between rules and results in legal reasoning.  This blog post will cover the difficulty of articulating a viable legal rule in Masterpiece Cakeshop.   I have previously blogged about the free speech and religious liberty arguments in the opening brief of Petitioners Jack Phillips and Masterpiece Cakeshop; the implications of Justice Gorsuch’s dissent in Pavan v. Smith on Masterpiece Cakeshop; and the line-drawing problems presented by this case.

Two weeks ago, the briefs of Respondents Colorado Civil Rights Commission and of Charlie Craig and David Mullins were filed.  Respondents argue that Masterpiece Cakeshop des not have a First Amendment right to refuse to bake a cake for a same-sex wedding.  Commercial entities, they argue, should not be permitted to refuse to sell a product to a customer because of that customer’s identity characteristics.   According to the Colorado Civil Rights Commission, “Phillips violated the [Colorado public accommodations law] because he refused to sell any wedding cake of any design to an entire category of customers.”

Respondents’ arguments are compelling.  If the Supreme Court accepts Respondents’ position, the Court will have to articulate a fair, coherent rule that accords with First Amendment precedent.  Respondents propose something clear: a seller cannot refuse to sell a product to gay couples if it would sell the identical product to straight couples.  Respondents focus on the selling, and argue that selling cakes is not speech, just like allowing military recruiters access to university campuses was not deemed speech in Rumsfeld v. Forum for Academic and Institutional Rights.  However, allowing a speaker access to one’s facilities is much less expressive than the act of baking a custom-designed cake, which Petitioners consider to be a form of art.  In their brief, Petitioners had argued that Colorado’s antidiscrimination law compels pure speech.  However, baking and selling a cake is less expressive than a parade or standing to salute the flag.  Neither Petitioners’ nor Respondents’ best cases lead to a legal rule that harmonizes with other, foundational First Amendment jurisprudence.  Both sides seem guided not by rules, but by results.

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