# Today in the courts: civil rights laws may be unconstitutional **URL:** \ **Category:** Great Debates\ **Created:** [October 18, 2018, 7:19am UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137 "2018-10-18T07:19:29Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2018, 9:00pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/21 "2018-10-19T21:00:48Z")
> [@Little\_Nemo](#): > > Is providing an abortion creative speech? Are abortions protected by the First Amendment? Would laws restricting abortions be a violation of free speech? No. No. And no. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [October 19, 2018, 9:07pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/22 "2018-10-19T21:07:33Z")
> [@ITR\_champion](#): > > 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. **Hamlet** response to your post seems pretty spot-on, so maybe back off that “everyone” a little bit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2018, 9:08pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/23 "2018-10-19T21:08:51Z")
> [@UltraVires](#): > > 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 doubt there’s any film director in the country that believes he isn’t conveying a message with his films. Even documentary filmmakers. What scenes to shoot, what scenes to cut, what effects and music you add. . . all of these create an impression. > [@](#): > > 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?\* Do you focus on my kid sharing his cake with the neighbor kid that no one likes, or do you capture him pouting when he’s forced to share his playtoys with his guests? Do you highlight his red faced scream of, “Mine!” as he snatches a toy away from a guest? All of those are editorial and creative choices. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [October 19, 2018, 9:31pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/24 "2018-10-19T21:31:18Z")
> [@Bricker](#): > > I doubt there’s any film director in the country that believes he isn’t conveying a message with his films. Even documentary filmmakers. What scenes to shoot, what scenes to cut, what effects and music you add. . . all of these create an impression. Should a lawyer be able to refuse to take on a client who’s a member of a protected class? Should a house painter? ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 19, 2018, 9:37pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/25 "2018-10-19T21:37:09Z")
> [@Bricker](#): > > No. No. And no. Why not? All cakes look the same once eaten; all abortions look the same once completed. The act of carrying out the abortion, of course, is performance art. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [October 19, 2018, 9:45pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/26 "2018-10-19T21:45:17Z")
> [@begbert2](#): > > Why not? All cakes look the same once eaten; all abortions look the same once completed. The act of carrying out the abortion, of course, is performance art. So…if you wanted a cake with a swastika on it and I was Jewish, I should just suck it up and make it for you because once you eat the cake it would be in your tummy? What this has to do with abortion is obscure to me, but you think that because a cake is eaten it’s all good? 😕 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2018, 9:48pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/27 "2018-10-19T21:48:11Z")
> [@begbert2](#): > > Why not? All cakes look the same once eaten; all abortions look the same once completed. The act of carrying out the abortion, of course, is performance art. It shares no relevant characteristics with visual or creative artistic expression. I suppose, if the abortion were done for an audience, or a video, or while wearing tap shows and dancing counterpoint to the Eleanor Powell choreography from “Broadway Melody of 1940,” then . . . ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 19, 2018, 9:53pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/28 "2018-10-19T21:53:12Z")
If you’re opposed to Nazis, then you can refuse to make a cake with a swastika on it. And if you’re opposed to marriage, then you can refuse to make a cake with “Congratulations on your wedding” on it. But if you happily make many other customers cakes that say “Congratulations on your wedding”, then that’s evidence that you don’t find that message objectionable after all. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 19, 2018, 9:54pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/29 "2018-10-19T21:54:34Z")
> [@](#): > > Quoth **Shodan** : > > 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. That’s OK, because the actual text does say that you shouldn’t go looking for rights in the actual text. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [October 19, 2018, 9:54pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/30 "2018-10-19T21:54:45Z")
Here’s the Cato Institute summary, btw: [https://www.cato.org/publications/legal-briefs/telescope-media-group-v-lindsey](https://www.cato.org/publications/legal-briefs/telescope-media-group-v-lindsey) ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 19, 2018, 10:02pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/31 "2018-10-19T22:02:30Z")
> [@XT](#): > > So…if you wanted a cake with a swastika on it and I was Jewish, I should just suck it up and make it for you because once you eat the cake it would be in your tummy? What this has to do with abortion is obscure to me, but you think that because a cake is eaten it’s all good? 😕 Well, I personally see the merit in drawing a distinction between protected and non-protected classes. I’d be a bit hard-pressed to make the argument that the denial of my swastika-cake was flouting any protected status - but if I somehow managed to do so, I’d say you should be forced to make the cake or be censured appropriately for your refusal. And as for the relation to abortion, I’m just getting less and less impressed with the tendency of some to call anything they want to be able to do freely “speech”, even if it’s merely an action with an effect (like giving money). If they can do that, why can’t I? Carrying out an abortion is a specific act that produces a change in the world. The message of the interpretive dance in question is “this woman shall no longer be pregnant; thus it shall be!” > [@Bricker](#): > > It shares no relevant characteristics with visual or creative artistic expression. > > I suppose, if the abortion were done for an audience, or a video, or while wearing tap shows and dancing counterpoint to the Eleanor Powell choreography from “Broadway Melody of 1940,” then . . . I say the same thing about decorating a wedding cake, but nobody listens to me. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 19, 2018, 10:09pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/32 "2018-10-19T22:09:51Z")
> [@Bricker](#): > > I suppose, if the abortion were done for an audience, or a video, or while wearing tap shows and dancing counterpoint to the Eleanor Powell choreography from “Broadway Melody of 1940,” then . . . You’ve clearly established the difference between abortions and wedding cakes. ---
**Author:** ![XT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/xt/32/456_2.png) [@XT](https://boards.straightdope.com/u/XT)\ **Post date:** [October 19, 2018, 10:22pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/33 "2018-10-19T22:22:17Z")
> [@Chronos](#): > > If you’re opposed to Nazis, then you can refuse to make a cake with a swastika on it. And if you’re opposed to marriage, then you can refuse to make a cake with “Congratulations on your wedding” on it. But if you happily make many other customers cakes that say “Congratulations on your wedding”, then that’s evidence that you don’t find that message objectionable after all. Seems overly tortured as an analogy. If I’m in the business of making cakes with national emblems on them but refuse to make one with a swastika on it that seems like it should be a choice I should be able to make without being opposed to all other national emblems. Or if I make cakes for all occasions but you want one with a confederate flag and two idiots in clan regalia, that doesn’t seem like something I should have to make with a choice such as you laid out there. That said, if I make generic cakes that simply have ‘Congratulations on your wedding’ I should sell that to anyone who walks in with out asking them who it’s for…anyone can buy it after all. But that wasn’t the case, was it? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 19, 2018, 10:24pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/34 "2018-10-19T22:24:44Z")
So according to conservatives, the following acts are creative speech and should be protected by the First Amendment: 1. Baking a cake. 2. Giving money to a politician. 3. Somebody advocating for a conservative cause in public. But according to conservatives, the following acts are not creative speech and should not be covered by the First Amendment: 1. Swearing in a song. 2. Appearing nude in a film or on television. 3. Somebody advocating for a liberal cause in public. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 19, 2018, 10:33pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/35 "2018-10-19T22:33:33Z")
> [@Little\_Nemo](#): > > So according to conservatives, the following acts are creative speech and should be protected by the First Amendment: > > 1. Baking a cake. > 2. Giving money to a politician. > 3. Somebody advocating for a conservative cause in public. Agreed. All of those are expressive speech and protected by the first amendment. (To be clear, “baking a cake,” is expressive in the context we’re discussing: a custom cake for a wedding. The ordinary mechanical baking of a plain cake, or the reproduction of a previously designed cake, would not be). > [@](#): > > But according to conservatives, the following acts are not creative speech and should not be covered by the First Amendment: > > 1. Swearing in a song. > 2. Appearing nude in a film or on television. > 3. Somebody advocating for a liberal cause in public. You may indeed find conservatives offering up those views, but I’m not aware of any mainstream conservative commentators who would argue any of those are divorced from First Amendment analysis. The first and third are unambiguously First Amendment material. The second, to the extent it refers to broadcast television, is still subject to a First Amendment analysis, but that First Amendment right is balanced against the government’s power to manage the limited resource of public airwaves. Cable TV and movies have an undeniable First Amendment right to show nudity. Upon which conservative commentators did you rely for this second summary? ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [October 19, 2018, 10:47pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/36 "2018-10-19T22:47:48Z")
> [@Bricker](#): > > 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. Speech is, you know, speech. As a rule, the videographer does not speak on a wedding video. Nobody thinks the videographer is part of the ceremony. Nobody thinks the videographer approves or disapproves. It’s their job to take pictures. By your standard, TV news camera operators would be refusing to cover stories in which they didn’t like the topic or didn’t like some of the participants in it, and lawyers would be refusing to handle wills in which assets were left to organizations the lawyer didn’t agree with. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 19, 2018, 10:54pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/37 "2018-10-19T22:54:42Z")
> [@Bricker](#): > > Agreed. All of those are expressive speech and protected by the first amendment. (To be clear, “baking a cake,” is expressive in the context we’re discussing: a custom cake for a wedding. The ordinary mechanical baking of a plain cake, or the reproduction of a previously designed cake, would not be). And _why_ is the handing of a money to a politician considered speech, again? Oh, right. ---
**Author:** ![E-DUB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/e-dub/32/403_2.png) [@E-DUB](https://boards.straightdope.com/u/E-DUB)\ **Post date:** [October 19, 2018, 11:06pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/38 "2018-10-19T23:06:44Z")
> [@Shodan](#): > > 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 No (white) skin off your nose, eh? ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [October 19, 2018, 11:10pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/39 "2018-10-19T23:10:35Z")
Because the politician does indeed speak. If wedding photographers were required to make literal public statements (real speech, in their own words) that they endorsed their clients’ religious beliefs, this would be a very different question. If my will says I leave a thousand dollars to the Republican Party, and my lawyer normally votes Democratic, can he refuse (on that basis alone) to draw up my will? ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [October 19, 2018, 11:19pm UTC](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137/40 "2018-10-19T23:19:11Z")
> [@DavidwithanR](#): > > Because the politician does indeed speak. I’ll presume you’re answering me, and talking about politicians handing over money. You can assert that the politician speaks, but what does that actually mean? That words are (always) exchanged while they hand over the money? Then the words are protected but the financial transaction is not. That the act of handing over money is itself speech because nowadays the transaction is done via the same channels that communication is done? Then me punching somebody is speech because my fist travels through the air the same way that sound waves do. That the delivery of money makes a political statement? The act of carrying out an abortion _definitely_ makes a political statement. (“I am willing to do abortions.”) I’m thinking that any nonbullshit argument for the handing over of money being speech could also be used to declare that _damn near anything_ that is perceived by another person is speech - particularly if the person carrying out the action has the creativity and foresight _to say at least one word verbally_ while carrying out the action. [Previous page](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137.md?page=1) [Next page](https://boards.straightdope.com/t/today-in-the-courts-civil-rights-laws-may-be-unconstitutional/823137.md?page=3)