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.

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Weird Tales Of “The Great Stupid”: Another Kid Is Suspended Because A Teacher Saw A BB Gun In His Home

fear

What are normal, reasonable people who are concerned about the shrinking liberties around them to do?

(I don’t have an answer right now, but that is the urgent question episodes like the ones described in this post raise.)

In 2020, I’ve written about two head-exploding stories involving innocent children forced by their school’s hysteria over the Wuhan virus to allow Big Brother’s eyes into their homes, and who found themselves being demonized and punished because of the completely legal and harmless items a teacher saw there.

First there was the asinine June incident in Baltimore County Maryland, where a 5th grade teacher at the Seneca School saw a BB gun hanging on the wall in an 11-year-old student’s bedroom. She took a screenshot of the child’s room, then notified the principal, who alerted the school safety officer, who called the police. They, in turn, made an unannounced visit to the student’s home.

At least they didn’t kneel on his neck. “I feel like parents need to be made aware of what the implications are, what the expectations are,” the child’s mother, a military veteran, told reporters. “No,” Ethics Alarms concluded, “Parents need to tell schools, administrators and teachers, what parents will tolerate, and the public education system needs a thorough upgrade and overhaul.”

Then, in September, we discussed an even more ridiculous episode. Colorado seventh grader Isaiah Elliott was attending on online art class when a teacher spied Isaiah’s  toy gun, a neon green and black plastic “weapon” with an orange tip and the words “Zombie Hunter” printed on the side. The teacher notified the school principal, and the school called the El Paso County Sheriff’s Office, which conducted a welfare check on the boy without calling his parents first. Isaiah, meanwhile, was suspended for five days. The conclusion here on that fiasco:

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Fearmongering Is Apparently All They’ve Got Now, And It Better Not Be Enough

Fearmongering

Unable to provide actual guidance that restricts the spread of the Wuhan virus, unable to be consistent in their various “scientific” pronouncements, unable to avoid utter hypocrisy by violating their own measures, and insulting our intelligence by implying that the pandemic doesn’t bother Black Lives Matter and the Democratic Party, the various state governments are now reduced to pure fearmongering, apparently in the vain hope that if everyone is terrified to do anything or interact with anyone, that will keep the Wuhan virus at bay, and, perhaps even more importantly, condition Americans to Love Big Brother.

Well, to hell with THAT.

When I saw today’s new, revised, extra scary risk wheel from the Colorado Department of Public Health and Environment (CDPHE), I thought it was a Babylon Bee joke. Sadly, it’s not. Sufficient numbers of idiots and would-be human-sheepherders in the Colorado state government decided that the usual DefCon 5 Red Zone wasn’t enough to frighten Coloradans sufficiently to meekly allow the government to wreck their businesses, stunt their children’s social and educational development, make them poor, and confine them to house arrest. These bureaucrats are so dim that they don’t realize that the sillier and more desperate they act, the less likely anyone with self-respect and a brain is going to care what they say.

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Sunset Ethics, 9/30/2020: Conflicts Of Interest, Sexual Harassment, Movies And Lies

1. Conflicts of interest on my mind. I narrowly averted a disastrous conflict of interest yesterday out of pure moral luck, so the topic is much on my mind; I’m still distracted by the near miss. Professionally, it was the equivalent of almost being picked off by a bus.

NPR Legal Affairs Correspondent Nina Totenberg reacted to the death of Justice Ginsburg with an essay on her 48-year friendship with RBG, saluting Ginsburg’s “extraordinary character.” That’s funny: Totenberg never told NPR’s listeners, nor did  NPR, that she had a personal relationship with the Justice, despite being charged with covering the Court and critiquing its decisions.  Kelly McBride, NPR’s public editor and senior vice president of the Poynter Institute, threw a metaphorical ethics foul flag,

“In failing to be transparent about Totenberg’s relationship with Ginsburg over the years, NPR missed two opportunities,”she wrote on the NPR website. “First, NPR leaders could have shared the conversations they were having and the precautions they were taking to preserve the newsroom’s independent judgment,” McBride said. “Second, having those conversations in front of the public would have sharpened NPR’s acuity in managing other personal conflicts of interest among its journalists.”

Ginsburg, who officiated at Totenberg’s wedding in 2000. Nonetheless, the correspondent,  who wears her progressive bias on her sleeve as it is, denied that the conflict compromised to her journalism, telling  the Washington Post that NPR’s listeners benefited from ther friendship because it gave her greater insight into and Ginsburg’s  thinking.

And that justifies keeping the relationship secret from listeners how, Nina?

2. From the “When ethics alarms don’t work” files: Lawyer Phillip Malouff Jr. of La Junta, Colorado, was censured for a series of episodes of unprofessional behavior and sexual harassment.

In November 2016, Malouff  winked at a magistrate judge and said, “When you get back from your vacation, I better be able to see your tan lines.” When he visiting the same magistrate’s chambers to discuss scheduling matters, he  said, according to the female judge,: “Ask your husband a question for me when you get home tonight. Ask him what it’s like to have relations with someone who wears the robe. It has always been something I’ve wanted to do, but there have never been any women judges until now.”

Malouff  was informed that his comments were unprofessional and a violation of the Colorado Judicial Department’s anti-harassment policy. Ya think?

In July 2019, Malouff asked a judicial assistant to check whether the mother in a parental rights hearing had an outstanding warrant. When the assistant replied, “She is good.” Malouff  responded, “Her husband told me that she is good.

Wink wink, nudge nudge. Continue reading

Morning Ethics Warm-Up, 8/5/2020: Words, Spin, And Millard Fillmore

Because “Glibby-glop-gloopy” or whatever the hell Oliver is singing here makes about as much sense as anything else I’m hearing…

1. Today in The Great Stupid’s cancellation orgy:

  • The ABA Journal reports that the Massachusetts Appeals Court  wants the word “grandfathering” to be “canceled.” Ruling in a zoning dispute, the court said a structure built before the enactment of zoning regulations had a certain level of protection, but the court  didn’t have a good word to describe that protection because  it wouldn’t use  “grandfathering.”  “Because we acknowledge that it has racist origins,” the woke and silly judges declared.

Apparently the phrase “grandfather clause” originally referred to laws adopted by some states after the Civil War to create barriers to voting by African Americans, explained Justice James Milkey in footnote 11 to the August 3 opinion. Interesting! And completely irrelevant to how the word is used now. Now, if I were Ann Althouse, who is word-obsessed, I might spend hours looking for other words used routinely today that have unsavory origins. I don’t care what words originally meant or when  they were first used. The objective with all words is communication. “Grandfathered” is a useful word. I used it in my baseball lecture for the Smithsonian to describe how spitball pitchers were allowed to keep throwing the unsanitary pitch after it was banned for everyone else in 1920. The court’s kind of virtue-signalling makes people stupid and communication difficult, and shame on the court for indulging in it.

  • The University of Buffalo will remove any reference to President Millard Fillmore on its campus,though he helped found the school and served as its first chancellor from 1846 until his death in 1874. School officials said in a news release that its decision to erase the memory of an individual the university owes its existence to “aligns with the university’s commitment to fight systemic racism and create a welcoming environment for all.”

No, it aligns with craven cowering to Black Lives Matter intimidation  and statue-toppling mobs.  Millard Fillmore—-great name, crummy President—signed The Compromise of 1850, which included the Fugitive Slave Act. Since it was a compromise, the school’s logic would require “canceling” all the anti-slavery crusaders who were part of it, as everyone at the time was desperately trying to keep the United States from ripping apart. When that effort failed, we got the Civil War, and more American casualties than any war before or since. How dare Fillmore try to stop that?

I think the Fillmore-cancelers should be obligated to explain how they would have handled the growing tensions over slavery and the cultural divide between North and South. I’m sure they have a brilliant answer ready.

As the suddenly “In” Fred Rogers would  say, “Can you say ‘hindsight bias’? Sure you can!” Continue reading

So The Judge’s Wife Is On The Jury…Wait, WHAT?

“Hi hon!”

I haven’t seen this before.

Judge Thomas Ensor of Adams County, Colorado, now retired, sat back and allowed his wife to be empaneled on the jury trying Gary Val Richardson for allegedly firing one or two shots in the direction of police officers during a 2013 standoff.

The judge even thought the situation was funny. He joked during jury selection that lawyers should “be nice to Juror 25. My dinner is on the line.” After the jury was selected and sworn in, Ensor told the lawyers that he had never heard of a sitting judge having a spouse or family member on the jury. “There’s nothing wrong with it,” he said. “I think she’ll be a fine juror. I have not spoken to her about this case.”

One of my rules of thumb for avoiding legal ethics problems in trial is that if you’ve never heard of something being done before, there’s probably a good reason not to be the first to do it. Continue reading

There Is No Ethics Alarms Category Sufficiently Derogatory To Describe The Corrupt Conduct, Reasoning And Statements Of Congressman Ken Buck (R-Colorado)

Be proud, Republicans!

I know there are a lot of members of Congress who are frighteningly devoid of ethics, but this story, involving  the GOP’s Ken Buck, who is also Colorado Republican Party Chair , is revolting. He needs to be sanctioned, removed from office, disbarred as a lawyer, and repudiated by his party and his constituents. What he did is no better than taking bribes.

At issue is the Republican primary for the District 10 seat currently held by Sen. Owen Hill, who’s term-limited. State Rep. Larry Liston and GOP activist David Stiver were on the ballot.  Liston received 75% of the vote and Stiver just 24%, according to documents filed later in Denver District Court. The law states that to qualify for the November ballot  a candidate must receive at least 30% of the vote from Republicans within the district.

But Stiver complained the election was unfair, and the issue was taken up with the state central committee, which consists of nearly 500 members, including elected officials and county officers. In an April 17 conference call with less than half on the line, the group voted to place Stiver on the ballot for the seat, even though he failed to receive 30% of the district’s votes. The problem with this is that doing so would violate the law.

Nevertheless, after the vote, Buck asked  Eli Bremer, the GOP chairman for state Senate District 10, to submit incorrect election results to get Stiver on the primary ballot for a state Senate seat. The phone call in which this was discussed was recorded.

Bremer refused, and went to The Denver Post to explain what happened.“You’ve got a sitting congressman, a sitting state party chair, who is trying to bully a volunteer — I’m a volunteer; I don’t get paid for this — into committing a crime,” he said. “To say it’s damning is an understatement.” Continue reading

Noonish Ethics Warm-Up: Everyone’s Gone To The Moon, But They Aren’t Going To Zoom

Hello?

The Jonathan King hit from 1965 (most people think was originally sung by Chad and Jermy, who covered it) sounds profound but it’s not; King, who wrote the song in college, later admitted that he was satirizing Dylanesque lyrics intended to have great portent, but in fact he meant nothing in particular. The song sounds timely now, doesn’t it? Yesterday, while taking a walk, my whole Alexandria neighborhood was eerily empty and silent. I started singing loudly as I walked as my own small rebellion, but I didn’t think of King’s song until I got home.

1. The ethics breach is “incompetence.” Imagine having a niche business, waiting for your big break, then you get the break, and botch it. That’s Zoom. When schools, colleges and other organizations were forced to resort to online conferencing platforms, Zoom was a ready-made solution: easy to download, single click-access.

It was, as the saying goes, not ready for prime time. The easy access allowed easy hacking and the new phenomenon of “Zoombombing,” where anonymous assholes—yes, this is another time when the term is fair, apt, and necessary—entered conferences and classes uninvited with with pornography or worse. Zoom was  also caught sending user’s analytics data to Facebook, even if the user didn’t have a Facebook account. There were other privacy issues. Many school districts have suspended classes using Zoom.  Google just banned  the use of the Zoom teleconferencing platform for employees, citing security concerns. [UPDATE: So has the U.S. Senate.] Now many potential users, including me, are looking elsewhere.

The  company’s CEO and founder now says he’ll make his product harder to use to improve Zoom’s safety and security. Good luck with that. I suspect this is a Barn Door Fallacy situation. Business competence requires you be ready for that once-in-a-lifetime opportunity, and if it arrives and you’re not, you not only might not get a second chance, you don’t deserve one. Continue reading

Morning Ethics Warm-Up, 4/15/2019: Patriots Day! Jackie Robinson Day!

Good morning!

It’s funny: over at Ann Althouse’s blog, she’s complaining about how there’s nothing to write about. From an ethics perspective, I am finding too much to write about, especially since, unlike Ann, I still have to work for a living.

1. Quick: what does Patriots Day commemorate (and no, it’s not Tom Brady)? My home state of Massachusetts, Connecticut, Maine (which was once part of the Bay State), and Wisconsin observe the holiday, which honors the twin battles of Lexington and Concord, the confrontations with the British (on April 19, 1775, the day after “The Midnight Ride of Paul Revere”) that launched the Revolutionary War. I visited both battlefields more times than I could count when I was living in Arlington, Mass., right next to Lexington. That battlefield, what’s left of it, is in the middle of busy streets on all sides; it’s hard to imagine the scene as described in the song above from “1776.” Concord’s battlefield, in contrast, is almost exactly as it was in 1775.

All the publicity, even in Boston, about today will be dominated by the running of the Boston Marathon, but attention should be paid to the inspiring story of how ragtag groups of volunteers faced off against the trained soldiers of the most powerful country on Earth, sending the message that this rebellion would not be so easy to put down.  49 Colonists died, 39 were wounded, and five were unaccounted for. The British lost 73, while 174 were wounded,and 26 were missing.

2. It’s also Jackie Robinson Day. In every MLB game today, every player will wear Jackie’s number 42. The best way to honor Jackie for the rest of us is to tell his story to someone who doesn’t know who Jackie Robinson was, and it is shocking how many such people there are. The film “42” does an excellent job of dramatizing how Jackie broke the color barrier in baseball, simultaneously weakening segregation everywhere. The Ethics Alarms post about Robinson is here. Continue reading

Comment Of The Day: “Ethics Observations On The Masterpiece Cake Shop Decision”

How refreshing it is, while at least half the pundits and journalists are misrepresenting the Masterpiece Bakery decision to the public, to read an Ethics Alarms comment that both clarifies Justice Kennedy’s majority opinion’s flaws and also highlights an important issue that only the routinely-derided Justice Thomas focused on.

As it happens, I disagree with Thomas that a custom wedding cake for a gay wedding is  necessarily “compelled speech.” What is it saying? If it can’t be reasonably interpreted to express a position that can be fairly attributed to the baker, then it’s the customer’s speech, not the baker’s. I know there are cases where sign-makers and others have been upheld in their refusal to reproduce messages they personally find offensive. We saw a hint of that in the silly “Summa ___ Laude” cake fiasco. My position is that a business that creates a setting for speech by others should have no right to interfere with that message—hateful messages, obscene messages, it shouldn’t matter. It should be no more acceptable for a sign-maker to say “I won’t make that sign” than for a cabbie to say, “I won’t drive to that address,” or a haberdashery to refuse to let you buy a suit that makes you look fat.

Here is Glenn Logan’s excellent Comment of the Day on the post, Ethics Observations On The Masterpiece Cake Shop Decision:

Justice Thomas, in his partial concurrence:

“Ac­cording to the individual respondents, Colorado can com­pel Phillips’ speech to prevent him from “‘denigrat[ing] the dignity’” of same-sex couples, “‘assert[ing] [their] inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Johnson, supra, at 414. A contrary rule would allow the govern­ment to stamp out virtually any speech at will.”

This is the opinion that should’ve carried the day. In fact, Kennedy’s opinion is a blatant special pleading, fallacious on it’s face when he claimed the CCRC disparaged Phillips’ position. Even if I allow the comments made by some CCRC members do in fact disparage Phillips’ religion, the law makes it clear that religion is inoperative as a defense against its requirements anyway. How, then, can hostility to religion matter one jot or tittle, and isn’t such expression protected in its own right? The CCRC needed not show the least deference to Phillips’ religion, because the law that creates it manifestly doesn’t: Continue reading