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” →

The tension between exposing students to a range of ideas and shielding students from undue offense or trauma is ever-present at our nation’s universities.  How we resolve this tension is critical for the legitimacy of private universities, where academic freedom depends on a university’s main role being the dissemination of knowledge and encouragement of new ideas, not its serving as another political actor in a quest for a particular view of justice.  The proper resolution of this tension is even more critical at public universities, which must also respect the First Amendment’s broad free speech guarantees.  George Will’s opinion piece in The Washington Post on the “contextualization” of a statue at Yale, while extreme and ahistorical, makes important points about the way universities infantilize students and pathologize their emotions, leading to a decreased sense that students can manage their own emotions and handle disturbing and new ideas.  Using First Amendment lenses, I want to add some nuance and contextualization of my own to Will’s piece.

Continue reading “Considering Disturbing Speech Versus Trauma” →

The debate surrounding Tina Fey’s “sheet caking” comedy bit demonstrates some problematic  directions that discourse may be trending.

The discussions we are having as we grapple with the proper response to increasingly visible white supremacy, which many believe is condoned by the President, are critically important.  As someone who writes and teaches First Amendment and free speech culture, I think our discourse on these topics is breaking down.  I am glad that cities and universities are removing statutes honoring Confederate soldiers.  Every one of those relics, which are rightly perceived by many as honoring slavery, should come down (although not by vandalism, but by local, democratic decision-making).  I am also glad to see citizens contending with our racist history and how that history has affected our current cultural, political, and socioeconomic climate.  However, the reaction to Tina Fey’s bit evinces the tactics of perverting our First Amendment paradigm and negating someone’s views based on her identity.  Both methods are bad for discourse.

Continue reading “Tina Fey’s “Sheet Caking” Bit, and Why Discourse is Breaking” →

The deadly events in Charlottesville, where a white supremacist killed Heather Heyer and injured several others after a Unite the Right rally, have created a free speech reckoning for many, myself included.  After much thought, I have landed on the following ideas as ways forward.

Let’s not abandon viewpoint neutrality.  In an age where our President seeks to uncover the identifies of those who visit a website that coordinates protests against him, our First Amendment protections are more important than ever.  Indeed, in these dark times, our uniquely robust free speech protections are one of the few things that make me proud to be an American.

Continue reading “Free Speech After Charlottesville” →

A Google employee was fired on Monday for internally circulating a memo about how differences between men and women contribute to gender disparities at the tech company.  The ten-page memo contained fairly insulting gender stereotypes, such as women are less adept at handling stress, and men are more willing to dedicate long hours to their work in order to achieve higher status.  However, the memo was more measured than I expected from the reporting and outcry. Its author, James Damore, acknowledged the effects of sexism and the need for workplace diversity, but spoke out against the extent and unfairness of Google’s inclusion efforts and subconscious bias training.  He condemned “using stereotypes” (perhaps in individual application), but examined average traits distributed in the population.  The memo, although not convincing or well-executed, was, at the very least, correct about one thing:  A culture of shaming certain views, even moderate views, does exist in many important institutions.  Google’s dramatic step of firing Damore went beyond that shaming.

Google’s heavy-handed punishment, in the name of inclusion, actually undermines a critical purpose of gender and racial inclusion efforts.  One of the benefits of diversity — a benefit I have seen first-hand in the classroom — is that diversity exposes others to different viewpoints, backgrounds, and perspectives.  Google has instead impressed upon its employees that everyone must have, or must appear to have, hegemonic views about nature versus nurture in the gender debate and must advance the same explanation for gender imbalances in a tech company.  There are better ways to reconcile inclusion efforts with true viewpoint diversity; the two concepts needn’t be at odds.  Below, I will detail some possible approaches.

Continue reading “How Google (and Academia) Should Reconcile Inclusion Efforts with Viewpoint Diversity” →

A friend recently mentioned to me that he likes a legal journalist because she makes Supreme Court cases “accessible.”  I bristled at this word.  Although the public should understand the happenings of the judiciary, accessibility exists in tension with an appreciation of the rule of law.  Accessibility is deceptive.  A depiction of the Court that is easy on the layperson often requires removing legal jargon (or, the actual law) and glossing over the technical aspects of cases.  The sometimes meandering course of precedent is usually also simplified (I recall how in Citizens United, the narrative became that Citizens United overruled precedent, but that recent precedent had also broken new ground from previous precedent).  Supreme Court cases, argued by the best advocates and often involving the most difficult issues, cannot be rendered truly accessible without distorting the complex doctrinal edifice underlying the case and the nuanced, high-level arguments of both sides.

What remains, then, is mostly a discussion of the results of a case.  As a consequence, the public focuses on this result – the political or social ramifications of any case.  It’s no wonder that the judiciary has become increasingly politicized.  Many factors have contributed to our viewing of Supreme Court Justices as America’s royalty, but I believe that the way cases are presented to the public has enhanced this social problem.  When Justice Gorsuch claimed that he believes judges should not make law, and that a good judge must often issue decisions with which he disagrees, many were skeptical of both his sincerity and the propriety of the underlying ideal.  Perhaps this skepticism is well-founded, but it is pernicious.  One important fix for our rule of law crisis is the First Amendment.

Continue reading “The Rule of Law and the First Amendment” →

I remember learning in my Securities Regulation class in law school that, in securities fraud cases, securing a conviction or civil penalty against a company was somewhat beside the point.  Simply bringing accusations or filing a complaint against the company was enough to tank the company’s stock, regardless of whether the allegations were true.  The ability to secure this victory without having to prove anything armed prosecutors with a dangerous power, I thought.

I am reminded of this dynamic again after watching Beth Stelling’s Netflix comedy special.  After viewing her very funny, clearly feminist, totally fresh routine, I googled her.  On the first page of search results are her accusations against her ex-boyfriend, fellow comedian Cale Hartmann, of physical and emotional abuse and rape.   Stelling never names Hartmann, but her partner, comedian Sam Morril, outed him on Twitter the day after her Instagram accusation.  I saw the pictures of bruises she posted.  I then read Hartmann’s denial of the accusations and listened to another victim, Courtney Pauroso, discuss on a podcast her own alleged rape by Hartmann when she tried to break up with him.  I read the polarized comments about the events.  I researched how rape survivors, not wanting to seek recourse in the criminal justice system (for a variety of reasons) often turn to Internet vigilantism to shame their attackers, and it often works.  The sexual harassment accusations against African American poet Thomas Sayers Ellis were described as a “lynching.”  Cale Hartmann’s career is basically dead, and almost everyone in the comedy community has turned against him.  Neither Stelling nor Pauroso ever filed charges against him, and he has never been prosecuted for a crime.

I want to use this space, and this case, to discuss the extremely complex issue of Internet vigilantism in sexual assault and harassment cases – both the propriety of using the medium and how the responses to it reveal defects in our ability to discuss nuanced issues on the Internet.  I have mixed feelings about most of this and simply want to open a discussion on the topic.  All comments are welcome, but please be respectful, as these events involve real human beings, not simply Internet avatars.

Continue reading “Sexual Assault and “Internet Vigilantism”” →

The battle between a Reddit user and a famous news organization, with Donald Trump’s reputation as the prize, has left our nation reeling.  All of the elements for a great wrestling drama are present, except that everyone is playing the heel.  Indeed, the closest thing to a protagonist is HanA**holeSolo, an anonymous Reddit user fond of posting racist and anti-Semitic content, who issued what may have been a forced apology to prevent CNN from exposing his identity.  This blog chronicles the events from the past few days.  I identify what is and is not problematic, from the perspective of both our First Amendment rights and notions of free speech values – the values that best foster open, productive dialog.

Continue reading “No One in the Ring Has Clean Hands: CNN and the Anatomy of Politics by Meme” →

My favorite thing about this country is its exceptional First Amendment.  No other country affords the degree of protection that we do to political speech, artistic speech, and even offensive, hateful speech.  The current Supreme Court is doing its job in protecting our counter-majoritarian First Amendment liberties as against government intervention.  Outside of the courts, however, the term “free speech” is losing its cultural power.  Disingenuous invocations of free speech, by members of both the political right and the political left, are turning an apolitical idea into a partisan buzzword.

Continue reading “Disingenuous Invocations of “Free Speech”” →