This year brought some tremendous changes in the landscape of First Amendment doctrine and free speech values. Below is a high/lowlight of this year’s free speech developments, updates on previous posts, and some projections for the future.
The legal academy has long had an identity crisis, and there is decreasing faith among many Americans in the academy generally. A more deliberate, more cooperative discussion about what makes a legal academic — and what separates an academic from an advocate, social commentator, activist, or politician — would go a long way to ameliorating some of the, often well-founded, credibility concerns.
The legal academy’s project sits at the intersection of the academic’s general search for truth, the practitioner and the judge’s desire for synthesis and illumination of legal doctrine, and the lawmaker’s goal of reform. This uncomfortable intersection makes legal scholarship valuable, so long as legal academics distinguish themselves, both as legal experts and as academics. A true distinction requires that legal academics both use the skills they uniquely possess and approach their scholarship and teaching with intellectual honestly.
The increased democratization of the Internet and exposure to a wide array of political opinions appears to be creating less sophisticated, less thoughtful, less rational, angrier political engagement. There are many reasons for this unfortunate and counterintuitive phenomenon, despite the general wisdom of crowds. Of course, there is the increasing selection bias in what people read, and there is confirmation bias in what information people credit. I think a major, insufficiently discussed factor is that people are not reading in a way that allows them to truly absorb others’ perspectives. Many political discussions fail to impart growth, or even understanding, on its participants because we are not truly appreciating what the other party is expressing.
This semester, I taught a companion class to my Torts class, called Torts Lab, where we focused on critical reading, critical thinking, and critical writing skills. Many smart students enter law school and other graduate programs without these skills developed. In teaching Torts Lab, I learned a fair bit about meta-cognition, how we think about how we learn. I want to share some lessons I learned from teaching Torts Lab. Below is what I have discovered about where students go wrong in their reading, and how teaching better critical reading and thinking skills can lead to a better understanding of each other and the world around us.
As a jurist, Judge Kozinski has always been one of my favorites. Ever since law school, where I learned that many judges on the right and the left promote their own ideologies over fair-minded legal analysis, Judge Kozinski provided an inspiring counter-example. His opinions on privacy rights and free speech particularly delighted me. Of course, one might argue he decided cases using an ideological lens of libertarianism, but he grounded his analysis in constitutional theory, at a higher level of abstraction and removed from partisan crassness.
I knew Judge Kozinski worked his clerks very hard, and I always felt a bit sorry for his clerks (especially when considering my own, idyllic Sixth Circuit clerkship where we worked hard, but also had time to explore a new city). However, I believed that the long hours his clerks were required to work were a testament to the seriousness and dedication Judge Kozinski brought to his task. Again, I found this approach inspiring.
A few years ago, I began hearing rumors that Judge Kozinski took liberties with his female clerks that seemed, at the time we would discuss them, mostly just shockingly creepy and highly inappropriate. I did not know if these rumors were true, but the buzz circulating was that he touched female clerks on the shoulders inappropriately and had a penchant for attractive clerks. I did not know the extent to which Judge Kozinski was exerting his authority to bully clerks and force them into uncomfortable, horrifying sexual situations. His behavior, even knowing the rumors and waiting for them to come out in the aftermath of #metoo, is extreme and surprising.
I will now recount, as accurately as possible, a conversation I had with an excellent Uber driver, Rick, on Masterpiece Cakeshop. (Uber drivers are often extremely excited to discuss First Amendment law.) This conversation exemplifies some proper and improper ways of framing the case, which involves whether a Christian baker has a First Amendment right to refuse to make cakes for same-sex weddings.
Rick: So here’s what I don’t get about the case. I understand the potential First Amendment right of the baker, but where does the state get the right to force labor out of people?
The Supreme Court heard oral argument today in Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case will decide whether Colorado’s public accommodations statute violates the First Amendment when it requires a Christian baker to create a custom-made cake for a same-sex wedding. For background and legal analysis on the case, I have written a blog series, the last post of which is here.
In deciding this case, the Court must choose between three legal frameworks. (1) If Jack Phillips’ cakes are considered pure speech, the Court will likely strike down Colorado’s antidiscrimination provision as applied to Masterpiece Cakeshop. (2) If the Court considers selling the cakes simply conduct, Colorado can apply its statute to require Phillips to sell cakes to same-sex couples. (3) A middle position, and one I believe is correct, is the view that the cakes are expressive conduct. In that case, Colorado can likely apply its statute to Masterpiece Cakeshop unless Colorado is deemed to selectively apply its public accommodations statute in ways that penalize certain viewpoints.
This oral argument post will detail the ways each Justice framed the case. I have ordered the Justices from the Justice who seems most inclined to side with Colorado to the Justice who seems most inclined to side with Masterpiece Cakeshop. The Justices spent most of the argument battling with the unfortunate consequences that would arise no matter what the ruling in this case. Any ruling, as became apparent from oral argument, will be problematic, either for free speech liberties or for civil rights.
The four oral advocates in this case are: KRISTEN K. WAGGONER, for Petitioners Masterpiece Cakeshop and Jack Phillips; GEN. NOEL J. FRANCISCO, Solicitor General, Department of Justice, as amicus curiae, supporting Petitioners; FREDERICK R. YARGER, Solicitor General, Denver, Colorado; on behalf of the State of Colorado, Respondent; and DAVID D. COLE, of the American Civil Liberties Union.; on behalf of the private Respondents Charlie Craig and David Mullins, who wished to purchase a cake for their wedding from Masterpiece Cakeshop.