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Free Speech and Fair Play are a Bitch
If there were two lessons from the high school civics class most Americans seemed to skip that they should learn now they are: rights are for everyone and free speech sometimes protects speech you don’t like yourself. Luckily, the Supreme Court recently offered America a tutorial on both topics.
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the Court made the common sense ruling that discrimination of some colors of people is a poor way to fix discrimination of other colors of people. What woke mind could possibly conceive that the 14th Amendment’s equal protection under the law meant treating a large portion of the population grossly unfairly at the expense of another? Kind of a common-sense argument but one America needed to travel all the way to the Supreme Court to resolve.
Starting back with 1979’s Bakke and largely confirmed by the Supreme Court in 2003’s Grutter, America’s higher education institutions decided it was they who would fix systemic racism in America by offering preferential treatment by race, specifically, white and yellow colored students were considered less deserving of a good education at say Harvard, and had to sit out the Ivy League so that some black and brown kids could take their places. The word for this back in the day was not racism (which it was) but “affirmative action.” It would right wrongs. This “reverse discrimination” was allowed through some clever word play because its goal of a diverse student body was considered a “compelling state interest” that overshadowed other compelling interests, such as equal protection for all under the law. It was sanctioned by the Supreme Court of its day, but only as a temporary solution; Justice Sarah Day O’Conner in one of the key cases upholding affirmative action wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
It didn’t seem to work, short or long term, in significantly changing society, if black and brown activists of 2023 are to be believed. Decades of pushing aside white and yellow kids (the former privileged because once upon a time other unrelated white people owned slaves and the latter just too damn hard working and smart) for black and brown did not seem significantly change society. There are of course individual examples, both fake (blacks or browns who would have succeeded in any system) and occasionally real, true by-their-bootstraps stories once they got that helping hand.
“When affirmative action was conceptualized, it was to right past wrongs,” one commenter said. “Then, it became sort of endless. It wasn’t just African Americans. It was Native Americans and Hispanics. And then it was women, LGBT, etc., and that wiped out the moral imperative of it a little, because diversity is not quite as strong a claim as correcting past wrongs.”
There were other problems. Letting someone into Harvard is not the same as him succeeding at Harvard. I learned that in high school too, by the way. If some program had sent me to an Ivy school at age 18 I would have failed miserably, coming out of a non-rigorous but nice enough Ohio high school where upon graduation I had neither read one classic book nor written one proper research paper. I think Harvard expects you to know that kind of thing and white as I am, I would have floundered. I’m sure they have some sort of remedial program for their unqualified students but it seems unlikely to make up for many years of half-hearted education before it. And that exposes another dirty little secret about why affirmative action failed; America is divided by class, not race (though the two overlap in a Venn diagram.)
America’s second recent high school civics lesson is you as an individual may not like everything other people use their freedom of speech to say and do; in fact, their deeply held beliefs may run 180 degrees from yours. Protip for exam time: this is the whole point of the First Amendment free speech clause and it was on display in another recent Supreme Court decision, 303 Creative v. Elenis.
The crux of the case is that one side, a web designer, wanted to know what would happen if she refused to produce a hypothetical celebratory wedding page for a gay couple, claiming her religion did not allow her to support same-sex marriage. The couple would have sued because of course they would, likely claiming as a protected class by sex in Colorado, the cake maker must be forced by the government to make the cake they wanted celebrating their nuptials. Lower courts had weighed in in favor, claiming various cake makers, florists, and web designers must be forced to practice their craft (i.e., their expression, their speech) to avoid LGBT discrimination. It was as if one side had more rights than they other and would have resulted in the government of the United States using the threat of arrest or fine to force the web designer to produce speech she was opposed to.
That’s a big no-no in a democracy, compelling speech.
Though the state can demand businesses provide goods and services to all customers in protected categories, it cannot demand individuals engage in speech proclaiming messages that they oppose, such as in web page design. In Justice Samuel Alito’s words, a win for the state of Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
This all goes back to 1943’s West Virginia Board of Education v. Barnette when during WWII the Supreme Court held West Virginia could not make Jehovah’s Witness students pledge allegiance to the American flag. The decision contained arguably the most famous finding in American First Amendment law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key finding in 303 Creative is the designer is not denying a service on the basis of status of a protected class but instead refusing to engage in speech because she disagreed with its message (Masterpiece Cakeshop failed to yield a definitive ruling and is not relevant here.)
Despite all the hub-bub, the Court correctly applied the broader civics class way of thinking in 2023, focusing on the First Amendment speech clause, and said nothing directly about the more contentious and limited religious aspect of all this, and passed on 2023’s wokist definition of discrimination. Had the recent case involved a Jehovah’s Witness’ web page and not ostensibly something to do with gay rights, you would barely have heard of the matter even though the real significance would have been about the same.
It’s easy to forget most of what you heard in high school, especially in a one-off class like civics. But common sense can get you a long ways. It is easy to write off the Court’s decision in Students for Fair Admissions as discriminatory, with only a little thought that what it did away with — affirmative action — was discriminatory as heck. Same for 303 Creative v. Elenis, which is being promoted by the MSM as anti-LGBT thing when in fact it is an example of how robust our First Amendment is. At the Founding no one could have conceived of a free speech battle between a web designer and gay clients, but that is what the First Amendment expanded to take in. The Supreme Court has not gone rogue, and democracy is not in danger. These two recent cases prove if anything the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What is Speech? Expression vs. Art, LGBTQ Edition
A friend makes maps, colorful graphic maps of mostly Washington DC neighborhoods. She sells them, often framed, by the bushel at farmer’s markets and through her own shop. She often asks people where they live, but never how they live. Her service — the map — is neutral to whom one is married to, what religion they practice, which party they support. Everyone is welcome to buy a map, and all the maps are the same.
Not so for the hypothetical wedding cake maker in the next stall. While anyone is free (indeed, allowed by law) to buy an off-the-rack cake, she refuses to use her form of speech to support LGBTQ weddings. She’ll sell a gay couple a cake predecorated reading “Have a Great Day” but will not create say a rainbow design with two women holding hands for a couple or otherwise knowingly use her skills to celebrate the marriage. She claims that violates both her 1A right to practice her religion and, the emphasis here, her 1A right to free speech. Anti-discrimination laws (20 states have laws specifically protecting LGBTQ people) cannot compel her to create speech she does not believe in. A lot going on under the surface at the farmer’s market, and that’s why the Supreme Court has had to step in and sort things out.
The instant case is 303 Creative v. Elenis, ostensibly a culture war-religious 1A challenge that only incidentally concerns religion while really asking the question of “what is speech” and when can anti-discrimination laws compel it. Specifically, “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The Court heard oral arguments in early December, with a decision due in June.
The story starts familiar enough for 2022: Lorie Smith is a Colorado website designer who, according to her Supreme Court brief, intends to design custom wedding websites, and refuses to design websites that advance ideas or causes she opposes, such as same-sex marriage. She says she will work with gay clients on other, non-same-sex-marriage websites.
The existing law is pretty straightforward, saying, if a vendor is providing a service such as, say, running a drug store sandwich counter, then it doesn’t enjoy a constitutional right to refuse service to customers on the basis of status or identity. But though the state can demand that businesses provide goods and services to all customers without regard to race, sex, sexual orientation, and other protected categories, it cannot demand businesses or individuals engage in speech proclaiming messages that they oppose. Smith argues designing websites is a form of speech. The essence of the 1A is that the government cannot compel speech. Compelled speech crushes the speaker’s conscience and is a tool of authoritarianism. In Justice Samuel Alito’s words, a win for the state of Colorado against Smith would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
The mother of all cannot-compel-speech cases is 1943’s West Virginia Board of Education v. Barnette. At the height of World War II, the Supreme Court held that West Virginia could not make Jehovah’s Witness students salute and pledge allegiance to the American flag. The decision contained arguably the most famous single sentence in American First Amendment jurisprudence: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key question in 303 Creative is whether Smith is denying a service (websites) on the basis of status (her customers are gay) or refusing to engage in speech because she disagreed with its message.
In this case, the Supreme Court was well aware of a similar one, Masterpiece Cakeshop v. Colorado Civil Rights Commission, that never resolved the underlying core issue of what is speech, floundering instead on the religious angle and even the question of whether certain cake makers held a monopoly for their services. So never mind.
In the oral arguments just heard in 303 Creative, the Supreme Court’s conservative majority seemed prepared to rule a designer has a First Amendment right to refuse to create websites celebrating same-sex weddings based on her Christian faith despite a state law that forbids discrimination based on sexual orientation. But several justices leaning in that direction appeared to be searching for limiting principles so as not to unintendingly upend all sorts of anti-discrimination laws.
The justices seemed to be creating new ground legally separating racists from those who oppose gay marriage. Justice Ketanji Brown Jackson brought up a hypothetical mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie “It’s a Wonderful Life” might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. The difference between a service (a sandwich at a lunch counter) and art (words expressing joy over a same sex union) came up repeatedly. A thread throughout the arguments was whether the refusal to provide wedding-related services for a same-sex couple could be compared to the same treatment of interracial couples. The lawyer for 303 Creative said it could not and pointed out that in its decision finding a constitutional right to marriage for gay couples, the Court noted that respect was due to those who disagreed with same-sex marriage as a matter of religious belief. No such call for respect exists for those who oppose interracial marriage.
The arguments explored the difference between businesses engaged in expression and ones simply selling goods; the difference between a client’s message and that of the designer; the difference between discrimination against gay couples and compelling the creation of messages supporting same-sex marriage; and the difference between discrimination based on race and that based on sexual orientation. Whereas the earlier Masterpiece Cakeshop case failed to yield a definitive ruling, this one is expected to settle the question of whether businesses open to the public and engaged in expression can refuse to provide services to potential customers based on their religious or other convictions.
What it all means: if the Court acts as it has signaled it will, in favor of 303 Creative, then this will free conservative creative people to work within their fields without having to express beliefs, such as acceptance of same-sex marriage, contrary to their conscience. The Court will preserve anti-discrimination laws, hard won, to ensure we do not slip backwards to a time of segregated lunch counters and the like.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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