Tag Archives: First Amendment

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

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Ethics Observations On The Masterpiece Cake Shop Decision

The Supreme Court ruled today in favor of Jack Phillips, the Christian baker in Colorado who refused to bake a custom wedding cake for a same-sex couple. The Court  found that the Colorado Civil Rights Commission infringed on Phillips’s rights in ruling that he violated the Colorado anti-discrimination law barring merchants from refusing service based on race, sex, marital status, or sexual orientation. The ruling is narrow; it does not empower merchants to deny service based on sexual orientation.  It is based entirely on  the Colorado Civil Rights Commission’s  hostility toward Phillips’s religious views in ruling against him.

Observations:

1. Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only dissenting votes, meaning that the decision was 7-2, and not a “conservative vs liberal” outcome. Even the dissent is based on narrow legal and factual distinctions rather than ideological ones.

2. Read the opinion, and the dissent. Also, if you really want to impress your friends, access the resources available here.

3. These statements from Justice Kennedy’s majority opinion, cited by Justice Ginsberg, help clarify matters in the right legal and ethical direction:

  • “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
  • “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
  • “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ”

The ruling could have hardly been less of a ringing endorsement of either “side.”

4. To which I say, “Good.” As I wrote the last time this case was discussed here,
Continue reading

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Saturday Afternoon Ethics Stimulus, 5/26/2018: The Sad Part Is That None Of This Is A Surprise

Happy Memorial Day Weekend!

1.  From the “Bias makes you UNBELIEVABLY stupid, especially, apparently, if you’re a journalist” files: Ann Althouse posted this screen shot of memeorandum, an excellent  news aggregator page:

I wrote earlier about how many of the anti-Trump mob, in the news media and out of it, appeared to be actively rooting for the President’s diplomatic efforts with North Korea to fail, and how his Negotiation 101 move of symbolically walking away from the planned summit would probably be misunderstood and misinterpreted because of the current toxic combination of bias and ignorance, but this is ridiculous. Writes Althouse—who despite multiple polite requests refuses to put Ethics Alarms in her links despite its covering a lot of parallel territory, despite the many frivolous or largely inactive blogs she does link to, and despite the multiple plugs and links I give her, but hey, I’m not bitterContinue reading

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Morning Ethics Warm-Up, 5/24/2018: ‘Can’t We All Get Along? Nah…’ Edition

Good morning!

1. What? Negotiation competence? Boy, we haven’t seen THAT for a while. President Trump just pulled out of the scheduled summit with North Korea, a public lesson in Negotiation 101. If only Barack Obama had taken the Art of the Deal seminar before capitulating to Cuba and Iran. the letter the current elected President just sent to North Korea could not be more obvious in its devices, but I guarantee you that my negotiations professor at law school, Dean Adrian Fisher, one of the negotiators of the SALT treaty, would have approved. Here’s the letter, released this morning.

This is another ethics test, by the way. Take note of who criticizes the President for this, for they  will be revealing themselves as either reflex-Trrump haters or the kind of people used car dealers love to see walking in the door.

2. “A Nation of Assholes” update. It is now beyond dispute that the concept was right but that I badly misjudged the population that I thought would be primarily affected. My theory in the 2015 essay was that that having an ethics-challenged boor like Donald Trump as President would degrade the ethical standards of the public through the “rotting fish head” process: people follow the leader. Well, that has happened too, but the worst asshole transformation has beset progressives and “the resistance.,” as their behavior gets worse by the hour. Continue reading

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If You Want To Understand Why The Public Is So Easily Confused And Deceived, Follow Sports

Our education system simply does not train our young in critical thinking, and hasn’t for a long, long time. Then, as adults, we listen and watch supposed professionals who make their living informing us, enlightening us and communicating to us, and the level of reasoning they model is uniformly incompetent.

Nowhere is this more evident than in sports reporting. If you don’t follow sports, you don’t know what stupidity is being pumped into unsuspecting brains on a regular basis.

Here is an example: I was just listening to the MLB  radio channel’s “Loud Outs,” where the host, broadcaster and former player Ryan Spilborghs, was discussing the new baseball fad of beginning a game with relief pitcher who only throws an inning or two, and then bringing in the starter. There are theories that against certain line-ups this can create an advantage, but never mind: it’s irrelevant to the issue. Spilborghs, who really did attend college, says, “You know what convinced me? These stats…” and he began to read the won-lost records of various teams when they score first. “Overall, the average for all of Major League Baseball is that the team that scores first wins 70% of the time! Why wouldn’t you use this strategy if it meant that it increased your team’s chances of scoring first?” His partner, former player CJ Nitkowski, said, “You’re right!”

No, CJ, he’s an idiot, and so are you.

There is no magic to when a baseball team scores its runs. A run in the first inning is no more or less a run than a run in the 7th. The reason a team that scores first wins most of the time is, or would be, obvious if our schools weren’t crap, that in any baseball game, if one team begins with a one run handicap, it will lose most of the time. The team that scores first is like a team that begins the game with a one run advantage. Now, one run is a big advantage, but many of the teams in that 70% scored more than one run first. They really have an advantage: those teams probably win 85% of the time.  Then there is this factor that pollutes that stat that Spilborghs found so amazing: the teams that score first the most frequently are also the better of the two teams. They figured to win before they had a one, two or three run advantage.

The team that scores the most runs wins 100% of the time. Prioritizing scoring first with the result that your pitching is more likely to give up runs later in the game does not convey any advantage at all. If the “opener” pitching strategy results in opposition teams scoring fewer runs, then it has value. Preventing the other team from scoring first, by itself, is meaningless. ( How often does the team that scores last win the game? How about the team that scores the most runs in the fifth inning? Can you guess? Sure you can. But don’t tell Ryan. You’ll break his heart. Continue reading

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Morning Ethics Warm-Up, 5/22/2018: Blemishes

Goooood Morning!

1. What is so hard to understand about the concept of Freedom of Speech and Freedom of Assembly? The Daily Beast negligently covers a story about how some alt-right groups are planning some kind of anniversary/reunion event in Charlottesville. (Funny, I thought we celebrated anniversaries of good things) and how some activists are plotting to block them. I especially like this sentence:

“Activists warned Charlottesville last year that the Unite the Right rally could turn violent. Now they’re determined to keep neo-Nazis out of their city for the anniversary.”

The rally turned violent because the counter-demonstrators turned it violent with help from authorities, who couldn’t, couldn’t, or didn’t want to keep the alt-right and the antifa demonstrations away from each other. This is the Berkeley trick: “Your speech will incite violence from us, so its irresponsible for you to speak. This issue was supposedly settled when the ACLU fought to allow Nazis to march in Skokie, Illinois 40 years ago.  In the end, the Nazis didn’t march but the principle that they couldn’t be blocked because of their message was made clear. I wonder if the self-righteous, speech-restriction fans represented by Black Lives Matter activist Lisa Woolfork even know about that case, given such ignorant quotes as,

“[Charlottesville authorities] seem to have gotten the message that white supremacist ideology is dangerous, but they are not willing to take, I believe, the truly moral step to say Kessler’s rally is a white supremacist Nazi rally, and therefore is inimical to our values and that we can ban that.”

No Lisa, you can’t ban that. You can’t ban ideas, no matter how dangerous you think they are, or how dangerous they in fact may be. The theory that the government should ban speech based on morality is infinitely more dangerous than anything these alt-right jerks say, but you still have the guaranteed right to promote such democracy-rotting garbage. Another Lisa quote:

“We did not ignore the white supremacists and let them proceed to go about their business undisturbed without any censure. These ideas are harmful, and they lead to horrible consequences in the real world.”

And I repeat: What is so hard to understand about the concept of Freedom of Speech and Freedom of Assembly? It sure seems to be especially hard to understand for the Left recently. Continue reading

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Sunday Morning Ethics Warm-Up, 5/6/2018: Moore, Marx, Polls, And #MeToo And Legal Ethics Don’t Mix

Good Morning!

1. Remember, this creep is a popular and influential “progressive.” Here was what Michael Moore tweeted yesterday on Karl Marx’s birthday:

“Happy 200th Birthday Karl Marx! You believed that everyone should have a seat at the table & that the greed of the rich would eventually bring us all down. You believed that everyone deserves a slice of the pie. You knew that the super wealthy were out to grab whatever they could.”

Nobody who spins Marx this way after his abstract theories were used to enslave and kill millions while leaving nations devastated and impoverished is worthy of respect, or indeed anything but horror. Such a statement requires ignorance, delusion, dishonesty or idiocy, probably all three. Moore is the Left’s Richard Spencer.

Birthdays deserving of more public remembrance than Karl’s: Arnold Stange, Harold Staasen, Melody Patterson, and Phil Linz, among others, as well as every world citizen who lived his or her life without playing a role in making the planet more miserable. Continue reading

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