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.

Continue reading “Rules and Results in Masterpiece Cakeshop” →

One of the excellent benefits of teaching and writing on First Amendment issues is that friends and colleagues send me articles about First Amendment doctrine, free speech values, and academic freedom.  To respond to these myriad current events, I am creating a new type of post, called Abridged.  In Abridged, I will share, discuss, and connect all of the links sent to me over the past week. I would love to hear your thoughts as well.

Today’s theme:  Is the marketplace of ideas broken?

Continue reading “Abridged. (In which I connect all the links shared with me over the past week.)” →

I enjoy the television show The Good Doctor, as I enjoy most medical dramas.  This week’s episode, “Point Three Percent” makes an all-too-common math error.  This error has profound significance for criminal procedure, tort law, and scientific studies, because it changes whether we consider certain data significant.

Continue reading “The Math Problem in The Good Doctor, and Why It Matters” →

Continue reading “Common Misconceptions about Constitutional Rights” →

Earlier this month, journalists exposed Hollywood’s open secret that movie executive Harvey Weinstein harassed and assaulted female actresses.  Weinstein denies allegations of non-consensual sex, and he deserves his presumption of innocence in a courtroom, where evidence can be tested and weighed.  The conversation has, rightly, moved to larger cultural forces that sustained and facilitated Weinstein’s abuses of power.  Last Sunday, social media exploded with the hashtag “MeToo,” so that women who have been sexually assaulted or harassed can share their stories.  Soon after that, the meta conversation began about whether men, or gender non-conforming women, should also share their stories.

I believe that answer is a resounding yes.  Calls for silencing certain comments as irrelevant are an illegitimate, and counterproductive, way of simplifying and impoverishing a conversation.

Continue reading “Who is Allowed to Speak in the “Me Too” Conversation?” →

I began thinking about this post on Yom Kippur, the day when Jews ruminate on their sins.

This week, students affiliated with the College of William & Mary’s Black Lives Matter movement shut down a speaking event featuring an alumna from the American Civil Liberties Union.  The ACLU speaker had come to discuss “Students and the First Amendment.”  I do not support the tactic of hijacking a speaking event for one’s own purposes, even for a good cause.  A coordinated effort to shout down a scheduled speaker is not protected First Amendment activity.  Nor do I agree with the protesters’ sentiment that “liberalism is white supremacy.”  The protection of hate speech is a critical component of maintaining robust, viewpoint-neutral speech protections, and liberalism has likely promoted civil rights better than any other system of political thought.

However, the activists who refused to even let students interact with the ACLU’s Claire Gastañaga highlight an important point with which I have been reckoning: the First Amendment is process-based and somewhat justice-neutral.  The First Amendment provides a methodology – open exchange of ideas – for attaining truth and reaching the best results, but must remain fairly agnostic about what those results are.   My own views about the First Amendment, and my exaltation of open, dispassionate dialog as a way of reaching enlightenment, often lead to political paralysis or a ceding of political responsibility to others.  Strong belief in a values-neutral process like free speech can lead to political disengagement.   The aftermath of the heartbreaking events in Las Vegas provide a useful lens for my reckoning with the sins of the First Amendment.

Continue reading “Politicizing Tragedies, and the Sins of the First Amendment” →

#TakeAKnee is a beautiful thing, all around.  Both the football and baseball players kneeling during the national anthem, and those criticizing the players, are all exercising their First Amendment rights.  The government cannot fine or jail anyone either for taking a knee in protest of police brutality against people of color or for denouncing Take A Knee as disrespectful to the flag and our military.  Our President is also empowered to express his opinions on the matter – as government speech – so long as his government does not threaten to jail or fine anyone participating in the protest movement started by former quarterback Colin Kaepernick.

The Take A Knee movement demonstrates why the First Amendment distributes power the way it does – preventing only government suppression of speech and allowing even a powerful entity like the NFL to suppress speech.  However, the movement also shows why one of its rallying cries, unity, is somewhat misplaced.  Indeed, what our free speech culture allows for is a diversity of opinions and approaches, even while we build community.

Continue reading “#TakeAKnee, Unity, and Public Versus Private Power” →

Our public discourse has become overrun by a**holes.  A contemporary theory, which explores when someone is behaving like an a**hole, provides a useful lens for understanding the ways we should and should not engage in public discourse.  This blog post applies the philosophical theory of the a**hole to approaches people take to public discourse – and asks when certain tactics are appropriate, if ever.

Philosophy professor Aaron James’s book, A**holes: A Theory,[1] brilliantly develops a coherent definition of the a**hole.  According to James, an a**hole is someone who (1) systematically enjoys special advantages in social interactions, (2) due to an “entrenched sense of entitlement,” and (3) feels no guilt or shame about taking unearned advantages because of this sense of entitlement.   James supplies ready examples of a**hole behavior (and even names names), but you do not have to agree with all of his examples to accept his theory – precisely because his theory depends on your views about what is and isn’t an unearned advantage.  James’s examples include line cutters; a**hole capitalists who believe that they deserve special treatment because they make more money; rockers who give interviews where they badmouth competing musicians; and academics who expect all of their work to be received well, and blame a failing system when this does not materialize.

Continue reading “A Theory of A**holes and Public Discourse” →

The opening brief and several amicus briefs have been filed in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In the upcoming term, the Supreme Court will decide whether a baker’s refusal to create custom-designed cakes for same-sex weddings is protected by the First Amendment.  Amici filing briefs include Cake Artists, who argue that cake design is as expressive as other forms of art, and thus is as deserving of free speech protections.  Several amicus briefs filed by religious and civil rights leaders argue that the belief in marriage as a union between a man and a woman is not akin to “holding racist views about marriage.”

Last week, I blogged about the free speech arguments articulated in Masterpiece Cakeshop and owner Jack Phillips’s opening brief.  In this post, I will address their free exercise arguments.  Future posts will follow the case through the briefing, oral argument, and opinion – tackling the legal frameworks and precedents that will be most controlling on this case.

Continue reading “Masterpiece Cakeshop’s Opening Brief: The Religious Liberty Arguments” →

Masterpiece Cakeshop and Jack Phillips have filed the opening brief in the much-publicized Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This Supreme Court case will decide whether cake artist Jack Phillips had a First Amendment right to refuse to bake a custom-made wedding cake for the wedding of Charlie Craig and David Mullins.  I have previously blogged about some of the hard questions in this case.  I have also written about what Justice Gorsuch’s dissent in Pavan v. Smith forecasts about his vote in Masterpiece Cakeshop.

In this post, I will lay out what I believe to be Phillips’s most compelling free speech arguments, based on his opening brief.  In later installments in this series, I will discuss Phillips’s arguments based on the free exercise clause of the First Amendment.  After Respondents’ briefs are filed, I will cover the arguments that application of Colorado’s public accommodations law does not violate either the free speech or free exercise clauses of the First Amendment.  Once all the briefs are filed, I will begin to form my opinions about how the case should be resolved.

Masterpiece Cakeshop is an easily sensationalized case.   In what is being framed as a battle in the culture wars between gay rights and religious liberties, the implications may be enormous, and the symbolic force is even larger.   I want to focus instead on the legal doctrine and reasoning.  For those who feel strongly about courts’ adherence to the rule of law, coherent, satisfying reasoning — that honors both the breadth and limits of the First Amendment — should be as important, if not more important, than the result reached.

Continue reading “Masterpiece Cakeshop’s Opening Brief: The Free Speech Arguments” →