Comment Of The Day: “Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional”

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I often feel like issues and discussions fly by too quickly on Ethics Alarms, as trivial matters like an old Star Wars fanatic’s vulgar window sign and the desperate efforts to frame a celebrity gymnast’s ill-timed choke blot out the ethical controversies that are most important to ponder and understand. Fortunately the commenters here often take steps to ameliorate that flaw, as veteran reader Dwayne N. Zechman does here. His Comment of the Day amplifies a post from a week ago that came in the middle of the earth-shattering question of Simone Biles’ “twisties” and only inspired 22 comments other than mine (my replies to comments don’t count). This, despite the fact that, to evoke Ben Bradlee (Jason Robards) at the end of “All the President’s Men,” nothing’s riding on what a Federal Appeals Court ruled in the case at issue “except the First amendment to the Constitution…and maybe the future of the country.”

Here is Dwayne’s Comment of the Day on the post, “Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional.”


So . . . true story:

While I was finishing college, I helped a partner build the first Internet Service Provider in town.
One of the ways we tried to generate income aside from the subscription for access was to create web sites that we would host for area businesses as a form of advertising. Being the “technical” arm of the business, I was the one who created these sites.

This was 1995 when the Internet was first deregulated to not require a “government sponsor” to connect and use the Internet–a relic of the National Science Foundation’s NSFnet which had grown well beyond its educational mission. At the time, there were no pre-built packages and everything we did was custom-designed.

Since it was all custom-designed, I used my skills with HTML, the basic language of websites, to replicate the design of a client’s existing paper advertising as well as possible.

So one day we get a client. His “business” is essentially a multi-level-marketing arrangement that sells a number of edible products based on algae. To me, this was a scam, pure and simple. The claims for the health benefits of eating algae were overstated at best and probably downright false.
But this was a paying client, and so got to work designing the site.

Let me reiterate here: I was personally designing a website for a customer whose business violated my beliefs and sense of ethics.

I am not exaggerating when I say that as I did the work, I started feeling physically ill. I believed this whole thing to be a scam, designed to convince people to buy a product they didn’t need with promises the product couldn’t possible keep, and further to rope them into signing on as another salesman of the same.

It wasn’t even my own WORDS being committed to the digital screen. It was, as I said above, my best-effort attempt to replicate the design, color-scheme, and layout of the customer’s own pamphlets that had been provided.

I most definitely felt like I was being an active participant in this scam. I did NOT want to do it.
My Ethics Alarms (a term I would learn decades later from our esteemed host) were ringing so loudly that it was making me feel sick.

Let me again reiterate: I felt as if I personally was endorsing this scam by creating the site that would promote it.

So there is NO QUESTION in my mind that this is compelled speech and Compelled ENDORSEMENT of what is being advertised.

There is maybe an argument that can be made–and that I could accept–if the sites that the web design business in the case creates are done by pre-built templates where you just fill in some text and the rest is auto-generated in a cookie-cutter fashion. But the moment an expert (artistic and/or technical) gets involved in making the site, it’s 100% First Amendment in my book.

Epilogue: As I recall, after the initial three-month run of the website, the customer elected not to continue paying for our services, and I was elated to be able to shut the site down once and for all.

10 thoughts on “Comment Of The Day: “Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional”

  1. Having personally done quite a bit of front-end development of websites, I have to say I agree that it is speech. In order to design a website, you have to think about not only the color schemes, and the words, but the user experience. You are designing how the website will flow, how easy it will be to use, how to facilitate user interaction with the website. If I were designing websites for causes or products that I disagreed with, I can easily see how it could make you nauseous. Do I really want to entice someone to click on buttons that will, let’s say facilitate abortions, for example? Nope. I think murdering the unborn is incredibly wrong, and trying to force myself to create a user experience for facilitating that would be pretty horrendous on a personal level. I would feel personally responsible for promoting any abortions that resulted from users of the website.

    I don’t think it is ethical to just make a shitty website, either, as Jack suggested previously. Can I do that? Of course. But my personal sense of integrity would be strained to do something like that. I don’t get paid to make shitty products. I get paid to do a job well. Intentionally sabotaging a product just to say I did the job so I don’t get sued for disagreeing with someone’s personal raison d’etre seems actually more unethical to me than refusing to do it at all. I think it is much more ethical to just look at someone and say, look, I don’t agree with this cause you want me to promote, and don’t feel like I could create something for you that would make us both happy. Why don’t you find a developer who agrees with you, and could create what you are looking for with passion for their work? That sort of simple civil discourse has now been outlawed, and it is disturbing.

    Forcing people to design products that promote and facilitate causes is absolutely forcing them to participate in speech. It is wrong.

    • I withdraw my observation (hypothesis) that assembling a website is just cutting and pasting. Obviously, these two commenters have been down this road. Thank you both for commenting.

      There’s just so much expertise in the commentariat. I’m always amazed.

    • The “do a lousy job” theory comes from some of the court opinions denying specific performance orders on personal service contracts. You can make an opera singer under contract sing, but you can’t make her sing on key, or loud enough to be heard, so making her sing isn’t an option—damages are. It’s important to maintain the “you can’t make me do a good job” option for this reason.

      Aren’t you arguing for the British colonel’s position in “Bridge Over The River Kwai”? “If we have to build a bridge for the enemy, it will be a damn good one as a matter of principle”? The film’s position is that he’s a fanatic who has lost his ethical bearings. If you don’t object to the task enough to do it badly, then you didn’t feel strongly enough about it to refuse to do it.

      • In the event that I am truly forced to make the website, I would indeed make it an unnavigable mess. Broken links, pages that go nowhere, options that do the opposite of what they say they will do, boxes with a random chance of doing what they are supposed to do, and a random chance of taking you to a 404 page. Or maybe porn. Pop-up box cascades like back in the 90’s. Blinking text! If it truly comes down to force, I will do a very good job of creating a sterling example of what not to do in a webpage. Tables that are quadruple nested and cannot render properly on mobile. Too wide for the screen even on a computer. Horizontal scroll for days. It will be slow, confusing, unformated, janky, and probably all done up in a nice bright orange, puce, olive green and magenta color scheme.

        Oh, the mess I could make. I could learn PHP and code it in that just to make the mess even worse, and insecure to boot. Heck, why learn it? I’ll just go all junior programmer on that code! The code would be unreadable! All written in one class! Mix 4 or 5 style libraries together, so no one can tell what does what. Memory leaks that crash the browser. Stack overflows and null pointers galore. The challenge of making the biggest mess I possibly can might even be amusing.

        At the end of the day, though, it is still compelled speech. I don’t know that revenge of the nerds is actually an ethical approach.

          • Assuming making it work is a legal requirement, then whatever parts I was legally obligated to make work would work.

            • Well, assuming you haven’t seen the movie, you’re supervising a group of your nation’s soldiers held in a brutal prisoner of war camp being forced to labor as slaved to build a militarily useful bridge. It’s war. Law is irrelevant.

              • We are back to why make the webpage at all? If I’m willing to flout the law, just refuse to make it period. Why not just make a completely unrelated webpage advocating the opposite of what they asked for and hand it over and call it done? Instead of a bridge, give them a brick wall a mile high.

                I have not seen the movie. I guess I will have to watch it to understand what you are talking about.

                • My fault, NP. I do that a lot—I assume familiarity with pop cultural touchpints that lots of people haven’t experienced. “Bridge” is a certifiable classic, a great movie and a great ethics movie. Let me know what you think.

  2. Thanks for the CotD, Jack. These days I’m checking in to catch up on things once a week or so, so I get behind and often read articles a week or more late–like . . . um . . . THIS ARTICLE RIGHT HERE for instance!).

    But I have loved this site from the very beginning, along with the commentariat (which I’m proud to be a part of) and I’ll always come back and catch up . . . sometime.

    And for the record: I did the work to the best of my ability and “do a bad job” never entered my head as even a possibility. I can understand how and why it might be an important legal concept but it doesn’t feel at all to me like an ethical concept.


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