Today in the courts: civil rights laws may be unconstitutional

Great Debates
1

The eight circuit seems posed to rule on a case, Telescope Media Group v. Lindsey, in such a way as to essentially make antidiscrimination laws unconstitutional.

Alethea Huyser, Minnesota’s assistant solicitor general, tried to reframe the case as a straightforward application of settled principles. “Minnesota’s law regulates discrimination based on protected status,” she told the court. “It does not regulate message.” Moreover, it doesn’t target any particular kind of speech; in the parlance of Supreme Court doctrine, it’s “content-neutral.” The Human Rights Act isn’t designed to compel pro-gay speech or anti-Christian speech or any speech at all. It merely prohibits businesses from turning away certain customers on the basis of a protected trait.

Stras vigorously disagreed. “In my view, to the extent [the law] touches speech, it prohibits only discriminatory speech. That’s not content-neutral,” he told Huyser. This theory is astonishing. The Supreme Court has long recognized that nondiscrimination laws do not generally implicate the First Amendment because they regulate conduct, not speech. And when the laws do regulate speech, they impose only an “incidental burden” on expression that does not trigger strict scrutiny. As the Supreme Court has explained, a law that bars an employer from hanging a sign that states “White Applicants Only” technically regulates speech. But its purpose is to regulate conduct, and so it should not be subject to stringent First Amendment review.

[…]

Not to Stras. If the court finds that videography is compelled speech, he asked Huyser, “doesn’t the state necessarily lose, because they have no interest in compelling somebody to speak?” This statement has stunning implications. A huge number of activities, from videography and photography to baking, card design, and virtually all wedding services, compel some form of speech. And civil rights measures always compel expression; managers, for instance, must train their employees not to discriminate, promoting the state’s message of equality in commerce. Under Stras’ theory, any law that directs businesses to serve customers equally—and do so in a manner that involves speech—would be unconstitutional. The entire legal framework that supports civil rights laws would come toppling down.

Noteworthy: this interpretation is not new, but rather came from Neil Gorsuch. So if this case goes to the supreme courts, we could, in theory, see a broad uprooting of antidiscrimination laws country-wide.

I’m again reminded of Planned Parenthood vs. Casey, where the standard for “compelled speech” was set notably higher, to the point where states can force doctors to lie about abortion, but that’s neither here nor there. The important thing here is that we may soon see the end of a great deal of antidiscrimination legislation for minorities. Not just on the basis of sexuality, but also on the basis of race. That seems like a fairly terrible outcome regardless of how well-founded it is in the constitution, and in this case, given past jurisprudence, it really isn’t. But given the hard partisan split, I would not be at all surprised to see this outcome, based on a 5-4 split, wreak havoc on LGBT and African-American communities.

2

Do you have a better/less biased source than Slate? The article begins by characterizing the Masterpiece baker case as one where the baker turned away a gay couple, which is untrue.

Regards,
Shodan

3

Would you rather characterize it as the case in which the owner of Masterpiece exercised his religious freedom to turn away a gay couple?

4

I’d rather not characterize it as the Slate article did, because that characterization is untrue. If no better source is available, oh well.

I guess I will wait and see if the case indeed leads to the overthrow of all civil rights legislation in the US.

Regards,
Shodan

5

So if I understand right, these videographers believe that if they go into the business of filming wedding videos, they will be required to film such videos for gay couples as much as straight couples, and they want to preemptively be exempted from doing so?

6

In what way is that untrue?

7

Don’t get your hopes too high. This decision probably will only overthrow half the civil rights legislation in the US.

8

If photography and videography are not examples of creative services in which editorial control and the ability to tell a story through visual media are desirable skills, then Ansel Adams and Annie Leibovitz have pulled off a masterful con.

It seems crystal clear to me that wedding photography and videography is creative speech. A law that compels a person to provide creative speech is violative of the compelled speech doctrine, in my view.

9

In a narrow sense, he is correct. They were free to purchase a “Congratulations on Your Retirement, Grandpa!” cake instead, then scrape off the frosting putting green and adorn it with two plastic grooms, but they had to be bitchy bridezillas about it.

It’s important that we always focus on the narrowest definition so we can discount liberal rags like Slate out of hand.

10

Uh, no. The notion that this case, if a ruling is made as suggested, would “topple the entire framework of civil rights law”, is typical of the hysteria and misrepresentation that I expect from Slate these days.

Civil Rights law, it should be recalled, is mostly about smacking down state and local governments. In the segregated South, the Democrats dominated every level of government and created laws requiring strict segregation in stores, buses, schools, businesses, government offices and virtually everywhere else. Those governments also blocked blacks from voting, protesting, getting fair trial by jury, or exercising other basic rights. The main purpose of civil rights law was to stop governments from doing any of that. Since this case is only about small businesses seeking protection from government forcing them to do something, it would not overturn any law preventing the government enforcing segregation. So right there, Slate’s headline is clearly off the rails.

Further, at the most, such a decision would affect a very small number of businesses, such as printers and videographers. So the vast majority of businesses such as restaurants and stores would not be affected, and civil rights law would remain exactly the same for them. Another dishonest mark for Slate.

And for the small number of businesses affected, they would not get unlimited license to discriminate, but only to make their own choices in issues that involve their own speech or expression, such as choosing what to videotape. The third paragraph that you quoted gives a far-fetched claim of how a hypothetical ruling could have more far-reaching consequences, but that won’t happen.

11

They declined to make a cake that matched what the customer was looking for. They weren’t booted from the location.

If someone came to your paint shop and asked you to draw a painting of a woman being tortured and mutilated, and you said, “Sorry, we don’t do that, but do you want to purchase one of my paintings of kittens?” Would you characterize that as “being turned away?”

Personally, I’d call it a polite turning away, but still a turning away. But I can see how one can technically make the case that that’s not true. But I would generally be suspicious of their intentions when choosing to be so technical. And I say that as someone who agrees with the Mastercake verdict. Being racist, sexist, etc. is a right and cakes aren’t a necessity of life. If they won’t provide someone with life-saving surgery, then I’ll say that the right to be a dick goes away. But in the realm of cake and arts, sure.

12

Is providing an abortion creative speech? Are abortions protected by the First Amendment? Would laws restricting abortions be a violation of free speech?

13

According to the Supremes, abortion isn’t protected by any amendment in particular - it emanates from penumbrae.

So it is a mistake to look for it anywhere in the actual text.

Regards,
Shodan

14

I would still argue that it comes from the 1st Amendment, they just wanted to avoid saying so to avoid having that argument.

Murder doesn’t suddenly become legal so long as you do it in the privacy of your home, so the “basic expectation of privacy” argument doesn’t hold muster, unless there’s an implicit, unvoiced assumption before hand that a fetus is not a human - which would come from secularist, scientific understandings of the development of life. (Not to imply that the secular view is consistent, just that there’s reasonable doubt.) And that would come from the 1st Amendment’s demand for secular government.

15

I love the “mostly” and “main” parts of this because you’re trying so hard to somehow minimize or ignore all the public accommodation laws in Civil Rights Acts. Anti-discrimination laws weren’t just for government, but also businesses too, just as they were meant to be.

It amuses me also because I just dealt with another conservative poster who claimed anti-discrimination laws were mostly about business. I guess they’re just whatever you want then to be.

Like a small business (lets say a lunch counter) seeking protection from government forcing them to do something (let’s say, I don’t know… serve food to black people?)

Or their right to free speech by putting up a “Whites Only” sign. Or their right to association by not allowing Jews. Or their right to free speech to only address men and exclude women. Or their right to free expression of religion by requiring them to serve blacks, which would make them support the integration of the races against their religious belief. Or their religious rights to pay women less because they should be subservient.

I’m always leery when rights are wielded like swords to allow discrimination.

16

How about the idea that if you want to operate a service business in this country, then you should be required to serve anyone who is lawfully in the country, and if you aren’t willing to do that and are for example, cake makers, then you can instead use your artistic abilities to make decorative cakes purely as works of art, put them in galleries, and try to make a buck that way? In this scenario, cake makers, and anyone else for that matter, are free to pursue their creative endeavors, and in addition we all get to buy yummy cake.

Win, win!

17

We’ve been in these threads a few times, and I generally support the rights of the cakeshop/wedding shop in these cases, but how it is compelled speech? I’m trying to see it, but I just don’t.

If I am a videographer, and you hire me to put together a montage of videos from your kid’s birthday party, what speech am I giving or what message am I conveying? I mean, if I go back to the store and tell everyone that I think that Bricker’s kid is a little shithead, how did me making that video prohibit my speech? Is there a danger that when the label “Ultravires Productions, Ltd.” is seen on the video that people might get the impression that I like your kid?*

*and ftr, I don’t even know your kids, but I started the analogy and didn’t feel the energy to change it. :slight_smile:

18

Everyone in the whole country? No dress codes allowed? No rude customers prohibited? How rude?

19

I wrote one post with four paragraphs. Everyone who reads my post will easily see what I wrote, and thus easily see how blatantly untrue your response is. My second paragraph stated that civil rights law was mostly about overturning laws and actions taken by governments, which is true. (In the Civil Rights act of 1964, two sections out of eleven deal with private businesses, most of the rest deal directly with government.) My third and fourth paragraphs specifically dealt with civil rights laws concerning businesses, so therefore you are wrong to say that I ignored public accommodation laws.

20

All the normal conventions as to why it’s okay to ask someone to leave your place of business would still apply. So yes, clothing would be a requirement. Not serving someone because you don’t like something personal about them is a reprehensible way to behave anywhere, and certainly in this country. If you don’t want to deal with people for religious reasons, then become a preacher and get out of sales.