Not Cakes, But Advocacy: The Tenth Circuit Rules That Compelled Expression Is Constitutional

compelled speech

I will state up front that I am confident that this decision will get to the U.S. Supreme Court, and that if and when it does, it will be reversed.

The 10th U.S. Circuit Court of Appeals at Denver ruled 2-1 that website designer Lorie Smith and her company, 303 Creative, violated a Colorado law by refusing to create a website celebrating a same sex union. forin a lawsuit filed before the law was used against her. She was represented by Alliance Defending Freedom, a conservative Christian nonprofit, who also represented Christian baker Jack Phillips, who refused to bake a cake for a same-sex wedding. There is a material difference, however, between a cake and a website. A cake is not generally thought of as expression, and there is a colorable argument that a bakery is a public accommodation. But Smith, whose company designs wedding websites, argues that forcing her to make one that supports a same-sex marriage violates her religious beliefs. It isn’t frosting and cake shades at issue, it’s words.

A Colorado public accommodation law bars public accommodations from refusing to provide equal access to services because of sexual orientation. The law’s communication clause also says public accommodations cannot publish any communication indicating that full access to services will not be provided because of sexual orientation. The appeals court majority decreed that neither provision violates Smith’s free speech and free exercise rights under the First Amendment, even though it acknowledged that Smith’s websites are pure speech that involve her unique creative talents. But, the Court claims, indulging in an “its isn’t what it is” rationalization, Colorado “has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace…We agree with the dissent that a diversity of faiths and religious exercise, including appellants’, ‘enriches’ our society…Yet a faith that enriches society in one way might also damage society in other ways, particularly when that faith would exclude others from unique goods or services.”

This opinion is way, way over the traditional judicially-drawn line between compelling public accommodations to be equally accessible to all and compelling artistic expression. Under this theory, a singer who performs at weddings would have to warble at a same-sex ceremony, even if her faith held that such a ceremony was a sin.

Continue reading

Tales Of The Great Stupid: Clarence Darrow’s Worst Idea Takes Hold In New York City

America’s greatest trial lawyer, Clarence Darrow, defended guilty criminals in part because he believed that it was cruel and unjust to punish citizens who committed crimes, even violent ones. Darrow, a pioneering progressive, lectured, debated and wrote that people committed crimes because of conditions beyond their control: bad parents, stupidity, mental illness, no education, poverty. Since those who committed crimes literally couldn’t stop themselves, punishment was revenge without reason. Sending someone to jail, far from advancing civilized conduct, not only destroys the life of the perpetrator but also creates a false sense of accomplishment, ignoring the socioeconomic “root causes” of crime. Nobody born free, the lawyer fervently held, should lose his or her liberty because of bad genes or bad luck.

It was and is a batty theory, and until very recently, one wouldn’t find anyone advocating it who wasn’t lying, ignorant, or a criminal himself. No longer. Today Darrow’s worst idea is running amuck in several big cities in the grip of woke Democratic government, and where it stops, nobody knows.

Take New York City…please.

The Big Rotten Apple has decided not to prosecute “quality of life” offenses, from littering to public urination to jumping subway turnstiles, with the predictable result that the quality of life for law abiding New Yorkers has cratered. Last summer, the Mayor’s Office of Criminal Justice crowed that “the number of New Yorkers held in New York City jails had shrunk by 27% in 10 weeks, bringing the city’s incarcerated population down to the lowest level since 1946.Wow! Isn’t that great? Of course, by some coincidence, murders and shootings were rising more quickly than ever before.

Continue reading

Sunday Evening Ethics Nightcap: Not Watching The Olympics Edition

TV off

Happy birthday Louise Joy Brown, the world’s first “test tube baby” conceived via in vitro fertilization in Manchester, England, on this date in 1978 to parents Lesley and Peter Brown. The bioethics controversies that flowed from this landmark event and subsequent scientific advances have not stopped yet.

1. When the George Floyd Ethics Train Wreck meets the Olympics, this is the sort of garbage you are going to get, at least from Kurt Streeter. He’s the black New York Times sports columnist who really appears to believe that the main function of sports is to raise racial and gender grievances. Woke sports commentary isn’t just bad sports journalism, it’s also boring. Politics makes sports less fun and less of what it was intended to be, entertainment, not crusading. By “this” I mean columns like his most recent titled “The Olympics Rely On, but Don’t Support, Black Girl Magic.” Never mind that the headline is racially offensive at the outset—nobody should care what color bodies athletic “magic” comes from, and only bigots like Streeter view sports that way.

Streeter’s brief supporting his obnoxious thesis is based on selective facts and personal bias. Here are his examples:

“Simone Biles is one of the most brilliant talents at the Games. But if recent history holds and she tries her most stunning moves in Tokyo, gymnastics officials will place an arbitrary limit on her score. Some say this is meant to discourage other competitors from attempting similarly dangerous aerial maneuvers. I say the sport’s regulators cannot deal with her sheer audacity.

And what does this have to do with her being black? Nothing, and nobody has alleged that it is otherwise, though if Biles does not win her expected gold, I’m sure Streeter will be among the first to cry “racism.”

Naomi Osaka is …perhaps the most widely known female athlete on the planet…will get tossed under the bus if she is not polite and pleasant in her interviews with the news media, a backlash prompted by her withdrawal from the French Open because she did not want to participate in news conferences there. That pressure exists alongside the dread that she’ll be derided as either too Black or not Japanese enough if she does not win a gold medal.

Whose “dread”? Apparently Streeter’s, the race-baiter. Meanwhile, any athlete who is not polite and pleasant in interviews always gets criticism from the news media, and deserves it. She didn’t withdraw from the French Open because “she did not want to participate in news conferences,” she quit because she wanted special privileges to break the tournament’s rules, and was foiled. None if this has anything to do with race either, except that Osaka may have thought that her appeal to the King’s Pass might be especially hard to turn down since people like Streeter would be quick to call enforcement of the same rules for all “racist.”

“Gwen Berry is one of the most powerful hammer throwers in the world and one of the boldest athletes in protesting racism and injustice. But the Olympic overlords have made clear she’d better behave on the medal stand — or else.”

Those “overlords” have the same rules for everyone. Berry is bold in protesting what she isn’t in the Olympics to protest; she’s a narcissist and a lousy citizen who should have been kicked off the team once she proclaimed that she didn’t regard herself as representing the nation that is honoring her by giving her a chance to compete. Streeter thinks her “Black girl magic” isn’t being supported because she won’t be allowed to embarrass her team and act like an asshole on the world stage.

2. From the “Blind Squirrel Finds Nut” files…Criminal justice reform activists and some lawmakers are upset the the Biden Justice Department is inclined to follow through on a Trump-era memo by the Justice Department’s Office of Legal Counsel requiring inmates who were allowed out of stir to reduce the spread of the pandemic in prisons and whose sentences lasted beyond the “pandemic emergency period” to go back behind bars. Awww! How mean. Criminals will actually have to serve their sentences! Systemic racism, of course. But the Biden legal team concluded that the memo correctly interpreted the law, which applies to about 4,000 nonviolent inmates. There are still plenty of fanatics and anti-incarceration extremists among Joe’s minions, so they might get the policy reversed yet.

Continue reading

Presenting The Complete Fake Voice Ethics Verdicts

Voiceprint

In Roadrunner: A Film About Anthony Bourdain, filmaker Morgan Neville,examines the life and death of the famous TV chef Bourdain. In the process of doing so, he introduced a new documentary device: using Artificial Intelligence to simulate Bourdain’s voice.

In a recent interview with the New Yorker, Neville explained that he used AI to synthetically create a voiceover reading of a Bourdain email that sounded like Bourdain was the reader. He engaged a software company and provided about a dozen hours of recordings, allowing them to create a convincing electronic version model of Bourdain’s voice. That voice reads three lines in the film, including an email sent to a friend by Bourdain: “My life is sort of shit now. You are successful, and I am successful, and I’m wondering: Are you happy?” But Bourdain, of course, never read that or any of the other three lines, to which Neville’s message to viewers is “Nyah, nyah, nyah!” “If you watch the film … you probably don’t know what the other lines are that were spoken by the AI, and you’re not going to know,” he said.

Well, critics, including Ottavia Bourdain, the chef’s former wife, objected to the ethics of an unannounced use of a “deepfake” voice to say sentences that Bourdain never spoke.

I was going to make this an Ethics Quiz, and then after thinking about for a few seconds, decided that the issue doesn’t rate a quiz, because I’m not in nay doubt over the answer. Is what Neville did unethical?

Yes, of course it is. It is unethical because it deliberately deceives listeners into believing that they are hearing the man talking when he never said the words they are hearing. It doesn’t mitigate the deception, as Neville and his defenders seem to think, that Fake Bourdain is reading the actual unspoken words in an email. It’s still deception. Is the creation and use of a zombie voice for this purpose also unethical, like the creation of CGO versions of famous actors to manipulate in movies they never made, discussed (and condemned) here?

That’s a tougher call, but I come down on the side of the dead celebrity who is being made into an unwilling ventriloquist’s dummy by emerging technology.

This would be a propitious time to point out what is ethical and what isn’t when it comes to using a dead celebrity’s voice, real or fake, in various forms of communications and education:

Continue reading

More On The “Fuck Biden” Ethics Train Wreck: Is Andrea Dick An Ethics Hero?

Dick

I’ll be uncharacteristically brief: I think she is.

As I stated in the previous post, her conduct was unethical. She was uncivil and disrespectful to her neighbors. Posting “Fuck Biden” signs is protected speech, but it is still unethical speech. She isn’t doing any good by posting such rhetoric. She setting out to annoy and irritate people, while being verbally assault to her nation’s leader. She has no defense, other than the claim that she has a right to be an asshole. And indeed she has.

However, now that the government is attempting to abridge her rights of free expression and speech, and using an inapplicable obscenity ordinance to do it, she has a patriotic, legal and ethical duty to oppose the efforts to silence her even though she should have shut up in the first place.

Ironically, although her signs and banners represent unethical behavior, she has created an obligation for herself to stand behind them. This will take courage and resources, but it appears that she will not be intimidated. Good. Her abuses of free speech must be protected lest free speech itself be diminished.

Andrea may be an asshole, but she is not a weenie, like so, so many Americans of far greater power and influence than she who have been intimidated into apologizing and retracting their political or social views. We have little to fear from assholes. America was built by assholes—stubborn, ornery iconoclasts who marched to their own drummers and didn’t care who liked it. Weenies, however, are an existential threat. Weenies strip away our rights by being too timid to fight for their own.

Andrea Dick is now an Ethics Hero. After she wins, she can prove she’s not an asshole by taking down her “Fuck Biden” signs because she decides to, and not because the government demands it.

Andrea Dick And The “Fuck Biden” Ethics Train Wreck

fuck-biden-flag

I was just thinking of neighbors like Andrea Dick yesterday, after I walked my politically tolerant dog Spuds past the many obnoxious lawn signs that have proliferated in my little corner of Alexandria, Virginia. There is, of course, the large, hand painted wooden sign reading “Black Lives Matter” that is festooned with rainbow flags and a full size suit of armor for some reason. That’s been an eyesore for more than a year. Then there are the moronic “End Racism” virtue-signaling signs—“End Stupidity” would be equally effective—and that list of facile progressive nostrums, including “No human is illegal.” You know, this one:

love-is-love

Well aren’t you wonderful! There is also that oldie but goodie, “Dissent is Patriotic,” whatever that means. There are several versions of this one…

Our America

All of them are the equivalent of the homeowner standing on his or her front lawn and preaching through a megaphone, and in the cases of the homes that post signs like this one…

Welcome sign

…the implication is that all the other houses nearby are full of greedy, racist bigots. All the signs offend me. The entire practice of using one’s property to preach, proselytize or politic is offensive. Yes, it’s protected speech, and using speech like that is abusing the right.

Andrea Dick is an angry supporter of former President Donald J. Trump and detests President Biden, so she has banners and signs expressing these view on her New Jersey house and lawn, including “Don’t Blame Me/I Voted for Trump” and several banners and signs with the message in the graphic under the post’s title. These are also ugly and offensive, but no more so than the virtue-signaling blather I have to see every day.

But her neighbors complained, so local officials first asked her to take down several of the banners that they said violated an anti-obscenity ordinance. She refused, and now she is resisting a judge’s order that she do so or face $250 fines every day the “Fuck Biden” banners and signs remain. Andrea Dick is pledging to fight it in court on free speech grounds.

“It’s my First Amendment right,” she said in an interview on Monday, “and I’m going to stick with that.”

Ethics Verdicts:

Continue reading

Gallup’s Institutional Trust Poll

who-can-you-trust

Gallup has another of its yearly trust polls out, this one covering institutions. It should surprise no one that virtually every institution covered showed a decline in public trust. This is a long-term trend, and for a democracy, an existential threat that our leaders in all of those institutions have not been taking sufficiently seriously. The one surprise in the survey is that the only institution that showed a rise in public trust since last year: the police!

Here is the list:

Continue reading

Follow-Up: Guess Who Is Telling FaceBook Which “Disinformation” To Censor?

jen_psaki_hunter_biden_russian_disinfo_07-17-2021

With this post. a follow-up to this one regarding the hypocritical and ominous Presidential attack on vaccine-related “disinformation” on Facebook, Ethics Alarms ends the suspension of George Washington University law professor Jonathan Turley, who writes the generally excellent “Res Ipsa Loguitur” blog and who has distinguished himself during the 2016 Post Election Ethics Train Wreck for refusing to follow the unethical lead of his biased and Trump-Deranged colleagues in law and academia, and having the courage to point out many of their worst betrayals of the public trust. I suspended the professor at the beginning of June for carelessly advancing a favorite Democratic party Big Lie on his blog, that a media recount after the 2000 election showed George W. Bush had actually lost the popular vote in Florida, and thus Al Gore was the rightful winner of the Presidency. I wrote, “Ethics Alarms is giving him a month’s suspension, or until he fixes his error and apologizes.” Well, he sort of fixed the error but never apologized, so I made the suspension six weeks. I’m happy to be able to reference his blog again, and as a happy coincidence, one of his recent posts nicely supported what I had just written.

Turley pointed to White House Press Secretary Jen Psaki admitting that the Biden administration is working with Facebook to flag “problematic” posts that “spread disinformation” on the Whan virus vaccine and related matters. She had said that the Administration has created “aggressive” policing systems to spot “misinformation” to be “flagged” for the social media companies. He wrote in part,

Obviously, anyone can object to postings. There is a greater danger when the government has a systemic process for aggressively flagging material to be censored. The real problem however is with the censorship system itself. We have seen how there needs to be little coordination between political figures and the media to maintain controlled narratives in public debates and discussions.”

By “little” the sometimes obsessively cautious professor means “none.” He continues,

Continue reading

The American Bar Association Adopts Yoo’s Rationalization or “It Isn’t What It Is”

aba-default-feature-img

To be fair, “It isn’t what it is” is an argument lawyers are trained to make, but this is especially glaring.

The Florida Supreme Court recently voted to prohibit the approval of continuing legal education credits for any CLE program with diversity “quotas.” This was a broadside at the ABA, which in 2017 approved a Diversity & Inclusion CLE Policy that requires all its sponsored or co-sponsored CLE programs with three or more panelists, including the moderator, to have at least one member of a a “diverse group.” Programs with five to eight panelists must have at least two diverse members and programs with nine or more panelists must have at least three diverse members. This will supposedly help accomplish the ABA’s Goal III , which aims to eliminate bias and enhance diversity in the profession.

There is a disconnect here, since the only purpose of continuing legal education is to do as good a job as possible keeping lawyers abreast of the law and developments in their profession. Does the skin color, gender, ethnicity or other characteristics of the CLE instructors and trainers advance that purpose in any way? I don’t see how, and neither did the court, which wrote in part,

Continue reading

Noon Ethics Munchies, 7/14/2021: On Cuba, Big Lies, Roy Moore, and More [Corrected]

Munchies

1. The President gets a cheap shot...Commenting on Joe Biden’s generally hysterical speech about “voter suppression,” “Bonchie” writes on the conservative blog Red State,

“Of note here is that Biden is channeling Nazi propagandist Joseph Goebbels by using the phrase “big lie” to disparage Republicans who have concerns about the 2020 election. Yet, despite the phrase’s murderous, anti-Semitic past, the president seems to have no problem saying it repeatedly. In doing so, he echoed CNN’s Jake Tapper and others who have also been fond of the phrase.”

There is nothing wrong with using the phrase or the description. The device was championed by both Goebbels and Hitler, and is an accurate description of a propaganda tactic, an unethical but powerful one, used by both the Right and the Left. Whether the description is used fairly in any particular case is a separate issue. “Big Lies” is a very accurate description of the assault by the “resistance”/Democratic Party/mainstream media against Donald Trump—can you think of a better one?—which is why Ethics Alarms used it here and elsewhere.

What would be fair to note is that Biden has often been an eager employer of Goebbels’ favorite trick himself…as noted in this post.

2. Does anyone understand why Democrats are trying to downplay the current Cuban protests against the Communist government? This makes no sense to me. Thousands of anti-regime protesters took to the streets across the island over the weekend, waving American flags and chanting “Freedom!” and anti-government slogans. Cuba has been a repressive Communist regime since Fidel Castro pulled his bait and switch with the U.S. in 1959, but the most extreme elements in the Democratic Party, the proto-Marxists, have always thrown Cuba metaphorical kisses, like Michael Moore. Barack Obama reversed decades of U.S. policy by opening relations with Cuba without requiring any human rights concessions in return. One would think an outbreak of democracy on the island would be viewed as a good thing, but Biden’s paid liar, Jen Psaki, absurdly explained that the reason for the protests was “concern about rising COVID cases, deaths, and medicine shortages” rather than political oppression.

While Republicans have immediately announced their support for the Cuban people, Reps. Bobby Rush (D., Ill.), Steve Cohen (D., Tenn.), Barbara Lee (D., Calif.), Gwen Moore (D., Wis.) and the more 70 members of Congress, including “The Squad,” of course, signed a letter asking Biden to lift Trump sanctions Cuba in March. They have not had any comment on the demonstrations so far.

Continue reading