Patterico's Pontifications

7/7/2021

Trump Sues Facebook And Twitter for . . . Violating First Amendment

Filed under: General — Patterico @ 8:30 am



No time for analysis but here are the lawsuits:

You want a quick analysis? OK: LOL.

237 Responses to “Trump Sues Facebook And Twitter for . . . Violating First Amendment”

  1. Trump releasing the Kraken? LOL

    Hoi Polloi (ade50d)

  2. I assume this is needed for fundraising purposes.

    Time123 (9f42ee)

  3. Your quick analysis is all that’s needed.

    whembly (3bda0a)

  4. fb and t are private businesses and can do what they like as long as they don’t bake cakes or arrange flowers

    JF (e1156d)

  5. There’s a difference between denying services based on individual behavior and denying services to members of a protected class.

    Time123 (9f42ee)

  6. Where’s his Roy Cohn?

    nk (1d9030)

  7. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

    Since when did facebook and Twitter become the same thing as Congress making laws abridging the freedom of speech or the press? But hey, I get it. The Constitution is a living document that means whatever the Supreme Court says it means.

    Purple Haze (848fb6)

  8. fb and t are private businesses and can do what they like as long as they don’t bake cakes or arrange flowers
    JF (e1156d) — 7/7/2021 @ 9:36 am

    Political persuasion is one of the few things not considered a protected class these days and you can be sure Democrats will fight to make sure it stays that way.

    Hoi Polloi (ade50d)

  9. I thought the SC ruled that the anti-gay baker didn’t have to make the cake?

    Time123 (9f42ee)

  10. @8 religious persuasion is a protected class and, unlike many of the others, is actually written into the constitution

    JF (e1156d)

  11. @6. It’s a Roy move.

    Still making headlines, six months outta office.

    In other news, President Plagiarist woke up this morning.

    DCSCA (f4c5e5)

  12. But hey, I get it. The Constitution is a living document that means whatever the Supreme Court says it means.

    It’s pretty meaningless to the dead; even the wealthy white men who wrote it as a second try after failing w/t Articles of Confederation.

    DCSCA (f4c5e5)

  13. I thought the SC ruled that the anti-gay baker didn’t have to make the cake?

    The Court ruled that the Colorado Civil Rights Commission exhibited bias against the bakery and violated the Free Exercise clause of the First Amendment, but it did not rule on the underlying question about whether the baker’s religious belief allowed an exemption to non-discrimination laws. The Court just recently punted this question again in Washington v. Arlene’s Flowers, Inc.

    Rip Murdock (d2a2a8)

  14. RIP, so we don’t know yet if he’ll have to bake the cake or not?

    Time123 (9f42ee)

  15. I look forward to Trump suing Michael Bender of the Wall Street Journal for libel.

    Rip Murdock (d2a2a8)

  16. And I thought the orange pile couldn’t get any more pitiful than when he sued Stormy Daniels for a refund. The thought that this ludicrous piece of sh!t is on the list of United States Presidents makes me want to throw up. I take back any objections and reservations I expressed regarding the two impeachments.

    This is not a President!

    nk (1d9030)

  17. It can be argued that the big social media platforms, because they are used by so many, and are often the default way to circulate ideas, have the kind of power of a government, and that it’s bad for them to censor in the same way it’s bad for a government to do that, but they are not the government. Trump claims, in his lawsuit, that they are – that they are doing it because of the federal government – that they are acting as agents of the government. But if, let’s say, fear of politicians passing antitrust laws is the reason they did it, a lot of things would have to be considered government action.

    Hoi Polloi (ade50d) — 7/7/2021 @ 10:09 am

    Political persuasion is one of the few things not considered a protected class these days

    And so lawsuits brought by Democrats try to fit under another category what they are claiming to be illegal, but the Supreme Court has not been too kind to that in redistricting and election law cases. Although there, there is a possible equal protection argument to be made.

    Trump maybe might have a potential consumer fraud/false advertising case – he could file a class action lawsuit demanding refunds – except that the service is free.

    But in reality, this is a Roy Cohn type unsound lawsuit. Trump’s maybe looking for a settlement.

    Sammy Finkelman (51cd0c)

  18. RIP, so we don’t know yet if he’ll have to bake the cake or not?

    Time123 (9f42ee) — 7/7/2021 @ 10:31 am

    At some point, maybe, as he is involved in another court case involving a gender transition cake.

    Rip Murdock (d2a2a8)

  19. RIP, to me the 2nd claim looked like an effort to see just where the line between cake as expression and cake as a commodity lay.

    Time123 (9f42ee)

  20. Trump’s maybe looking for a settlement.

    He says he is not, and I don’t think these suits would a) be certified as a class action, and b) survive a motion to dismiss. Trump is just trying to keep his brand in the news.

    Rip Murdock (d2a2a8)

  21. Allahpundit:

    I hope his lawyers told him before he went ahead with this that if it proceeds to trial, the companies’ lawyers will want to depose him about what led to him being banned from their sites. Which means putting him under oath and making him testify about the events leading up to the insurrection on January 6.
    …….
    It won’t proceed to trial, though. This is a stunt aimed at restoring Trump to a position of leadership in the populist fight against Big Tech (which Ron DeSantis was muscling in on). It’s all but impossible to imagine a court, even the Supremes, remaking a gigantic portion of modern American media in a single sweeping decision by declaring America’s most influential social-media companies to be state actors. That’s the sort of policy upheaval that requires deliberation by the public’s representatives in Congress.
    …….
    One example he cites of coercion are quotes from Nancy Pelosi and other Democrats threatening to modify Section 230 unless Big Tech platforms moderate inflammatory content, including posts by Trump, more aggressively. But that argument could be tricky since Trump and other elected Republicans have also called for rescinding Section 230 unless Big Tech does *less* moderating, another form of “coercion.”…..
    …….
    ……If Facebook is a state actor, though, then Section 230 wouldn’t matter; the company would be bound by First Amendment rules in censoring content. If Facebook isn’t a state actor then striking down Section 230 would be very bad news for Trump. In order to limit their liability from any defamation claims his posts or tweets might inspire, they’d ban him straightaway…..
    ……..

    Rip Murdock (d2a2a8)

  22. RIP, to me the 2nd claim looked like an effort to see just where the line between cake as expression and cake as a commodity lay.

    And (for me), that’s a tough argument to make. A cake is not a news report, or movie, or book. It’s a cake.

    Rip Murdock (d2a2a8)

  23. With how much Facebook and Twitter lobby the government and vice versa this could be interesting with discovery.

    I know there are emails with Zuck and politicians in California about other politicians. Wonder if that would come into play.

    NJRob (eb56c3)

  24. It won’t make it to discovery. And discovery is a two-way street. Trump’s deposition (as outlined by Allahpundit above) would be very illuminating to the House investigation into 1/6 and to Biden’s Justice Department.

    Be careful what you wish for.

    Rip Murdock (d2a2a8)

  25. RIP, My daughter made a cake recently. She spent hours watching YouTube videos on how to frost it, she asked for special tools for her birthday to use. We had to buy special types of sugar and special colors. Probably spent more then 10 times the cost of the cake on how it would be decorated. It was far more an art project then a culinary project. So I get the argument that a cake can be an artistic expression.

    My other daughter made a cake. It was just food. She didn’t even do a very good job because she didn’t want to be bothered.

    So I think the baker can’t be compelled to make art that sends a message he disagrees with. That would be compelled speech.
    But he also can’t use his faith based homophobia to refuse service to gay people in general.

    Somewhere there exists the test or tipping point where a cake stops being just food, and becomes art that’s governed by the first amendment. I think the 2nd case is looking for that tipping point. I also think he’s a target because gay people dislike him for his homophobia, but that supposition on my part.

    Time123 (9f42ee)

  26. I wonder if this was timed to push the indictment of the Trump organization into the back pages?

    Time123 (9f42ee)

  27. I haven’t read this yet: it’s my afternoon homework self-assignment. : ) So, I don’t know how or even if it might be relevant to this discussion.
    Offered up in the spirit of comity and the seeking & sharing of knowledge….

    https://www2.law.ucla.edu/volokh/carrier.pdf

    ColoComment (a15187)

  28. And I thought the orange pile couldn’t get any more pitiful than when he sued Stormy Daniels for a refund. The thought that this ludicrous piece of sh!t is on the list of United States Presidents makes me want to throw up. I take back any objections and reservations I expressed regarding the two impeachments.

    This is not a President!

    Ahh, the memory castle throws out some grist and someone has written another book about the idiot things Trump said and did in 2018. Yeah, we knew then, but 700,000 other things have crept in so maybe we forgot this little thing. Again, he did spend a year trying really hard to kill as many American’s as possible. Covid, letting the Russians, and anyone else I guess, put bounties on our soldiers, lots of things.

    But this one really gets me pumped up, like I need to take an Ambien and have a lie down.

    Donald Trump praised Nazi dictator Adolf Hitler during a 2018 trip to France to commemorate the 100th anniversary of the end of World War I, a new book claims.

    “Well, Hitler did a lot of good things,” the then-president told White House chief of staff John Kelly, according to passages from Wall Street Journal reporter Michael Bender’s “‘Frankly, We Did Win This Election’: The Inside Story of How Trump Lost” that were published by The Guardian on Wednesday.

    Trump reportedly made the observation while Kelly was reminding him “which countries were on which side during the conflict” and connecting “the dots from the first world war to the second world war and all of Hitler’s atrocities,” said Bender.

    Kelly was “stunned” by Trump’s remark, told the then-president he “was wrong,” argued “the German people would have been better off poor than subjected to the Nazi genocide” and said “you cannot ever say anything supportive of Adolf Hitler. You just can’t.”

    But Trump was “undeterred,” said Bender, and pointed to the recovery of Germany’s economy under Hitler in the 1930s as proof.

    Colonel Klink (Ret) (1367c0)

  29. Counting the seconds and minutes until the judge tosses these lawsuits out of court.

    HCI (92ea66)

  30. 20. I mean a settlement that let’s him back on with minor conditions.

    Sammy Finkelman (51cd0c)

  31. 25. Time123 (9f42ee) — 7/7/2021 @ 11:25 am

    She spent hours watching YouTube videos on how to frost it, she asked for special tools for her birthday to use.

    Birthday party?!

    One of the things most associated with the spread of Covid in the United States is birthday parties, for both Democrats and Republicans.

    https://www.nytimes.com/2021/07/05/upshot/covid-birthday-parties.html

    … Using health insurance claims data, they looked at the Covid rates of families in the two weeks after one of them had a birthday. Overall, their paper, published in Jama Internal Medicine, found that a recent family birthday increased Covid risk by nearly a third in counties where the virus was widespread….when researchers looked at other days of the year by randomly assigning birthdays instead of using actual birthdays, or examined diagnoses in weeks before birthdays, they found no such pattern. But, perhaps more significantly, they found the biggest infection risk in the weeks after the birthday of a child….

    ….So much behavior around the pandemic — including mask use and the uptake of vaccines — appears to differ by people’s political party. But the study found that birthdays led to increased Covid infections by similar levels in Republican and Democratic areas of the country. This doesn’t mean that the absolute risk of a birthday party becoming a Covid spreading event was high. But it was higher than not having a children’s birthday party.

    Sammy Finkelman (51cd0c)

  32. She did this last spring.

    Time123 (9f42ee)

  33. @29.

    Count the seconds and minutes until Kamala Harris takes the oath of office as POTUS, instead.

    DCSCA (f4c5e5)

  34. @28 is the hitler quote a lie like your russian bounty claim?

    JF (e1156d)

  35. @16. “And I thought President Plagiarist couldn’t get any more pitiful than when he woke up and tried to give a speech in Chicago today. The thought that this ludicrous piece of sh!t is on the list of United States Presidents makes me want to throw up…

    This is not a President!

    FIFY

    DCSCA (f4c5e5)

  36. @7

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

    Since when did facebook and Twitter become the same thing as Congress making laws abridging the freedom of speech or the press? But hey, I get it. The Constitution is a living document that means whatever the Supreme Court says it means.

    Purple Haze (848fb6) — 7/7/2021 @ 10:06 am

    The lawsuit is a little more nuanced than that it appears.

    What happens when a political party, with aligned confederates within the FANG companies acts as it they’re a proxy for that political party against their opposition party?

    I don’t know what is the solution here.

    But I think we need to have this conversation/fight. It’s just that Trump being that fighter is such a poor choice. I’d much rather the likes of DeSantis take that fight than Trump as he needlessly poisons the debate.

    whembly (fbaaf7)

  37. I thought republicans believed in less restrictions on business not more. I thought democrat socialists wanted government to control business.

    asset (adfb1f)

  38. 32 They weren’t warning people about birthday parties, only about gatherings in general.

    Last spring = 2020 or 2021?

    Sammy Finkelman (51cd0c)

  39. OT- The president of Haiti was assassinated at home

    news.yahoo.com/president-haiti-assassinated-home

    ‘The president of Haiti was assassinated at his home early Wednesday morning, the government said. He was 53. Jovenel Moïse was killed in his private residence at about 1 a.m. local time by a group of assailants, Haitian Prime Minister Claude Joseph said in a Wednesday statement.’

    CIA or DEA?

    DCSCA (f4c5e5)

  40. Time123,

    Are you naturally bigoted towards Christians only or is it all faiths that don’t worship secular belief? It’s not homophobia to follow the Word of God. All should turn away from sin and walk the path of righteousness. And yes, we are all sinners.

    NJRob (dd759b)

  41. “CIA or DEA?”

    The usual suspects are blaming Hillary.

    Davethulhu (2a76dd)

  42. “Are you naturally bigoted towards Christians only or is it all faiths that don’t worship secular belief? ”

    Follow up question: Have you stopped beating your wife?

    Davethulhu (2a76dd)

  43. @41. Look on the bright side- at least he wasn’t popped in Chicago.

    DCSCA (f4c5e5)

  44. Time123 (9f42ee) — 7/7/2021 @ 11:25 am

    But he also can’t use his faith based homophobia to refuse service to gay people in general.

    No one is arguing this. Even the baker isn’t. In both cases he was willing to make a cake with no message. It wasn’t an issue in either case until the customer told him the choices made in the decorations were chosen to communicate a message.

    Somewhere there exists the test or tipping point where a cake stops being just food, and becomes art that’s governed by the first amendment. I think the 2nd case is looking for that tipping point.

    There is no predefined point were something moves from one to the other. The ok sign was fine until claims were made it communicated something else. A white dress doesn’t mean much unless a woman wears it on her wedding day. As soon as the customer says it communicates a message it does. I’m not even sure a reasonable person standard kicks in here.

    frosty (470cf8)

  45. Mr Philips has been repeatedly harassed and persecuted by individuals in his community and the government for following his Christian faith. He hasn’t discriminated against anyone and doesn’t bar anyone from shopping in his bakery. He categorically will not endorse immoral behavior by making custom cakes that run contrary to his faith.

    That is not any type of phobia. That’s following the Word as he sees it.

    NJRob (5e5b2f)

  46. @37; The oligarchs are moving to the left and not every R is in favor of oligarchy

    frosty (470cf8)

  47. Frosty, Unless I misunderstood the 2nd law suit they’re asserting that’s what he’s doing. It looked to me like the were trying to set him up asking for a simple cake that he agreed to, then told him it was for something he disapproves of as a trap to make his free expression claim look like a pretext. But maybe I have misunderstood it. In case it wasn’t clear I agree he can’t be compelled to make a cake that sends a message he disagrees with. I think the court is being asked to come up with a test define the line between speech and plain commerce. I think they’ve had to do similar things for other religious exemption claims. But again, not asserting a lot of expertise here.

    NJRob, Specifically what did I write that you felt was bigoted against Christians? Curious as I consider myself to be one, even if i don’t share all of your interpretations about what Jesus taught.

    Time123 (9f42ee)

  48. It’s amazing how Trump is a Rorschach test of his own. If Trump made a comment about chocolate chip cookies at a rally and winked at the camera there would be a run on them in some areas and in others people would be posting videos of themselves dumping their cookies into the garbage on Instagram. Twitter and Facebook would ban mentions of them and YouTube would demonetize any video about them going back to 2016 and give strikes going forward. The NYT would have an entire project devoted to the racist history of chocolate chip cookies. Baking them at home would be a hate crime.

    frosty (470cf8)

  49. @37, I think republican’s used to (maybe) But that rule was never accepted by their opposition and it put them at a disadvantage in the culture war. Since many valued it less then culture war wins they tossed it.

    A less charitable interpretation is that the never really cared about limited government, that was just a lie they used when it suited them.

    I’m more inclined to believe the former then the later.

    Time123 (9f42ee)

  50. @48, Not all of us. I admit I dislike the loser. But I’ve been pretty consistent on this issue. Look back at what I said when sen Warrren wanted to bully Amazon and let me know if I’m mis-remembering myself.

    Time123 (9f42ee)

  51. Time123 (9f42ee) — 7/7/2021 @ 1:25 pm

    My understanding was that it was more involved than that. It wasn’t just make a cake and by the way I’m going to serve it at a transition part. My understanding was

    Autumn Scardina was denied a cake that was blue on the outside and pink on the inside to celebrate her gender transition on her birthday

    the colors were picked to symbolize the gender transition. This also isn’t “I don’t sell anything to gays” that seemed to be the subtext of your comment.

    frosty (470cf8)

  52. I have no doubt there is a tort here, and I have no doubt that Trump’s lawyers didn’t find it.

    Kevin M (ab1c11)

  53. Frosty, I think they’re trying to make the cake as simple as possible (that’s pretty simple btw) to show that his refusal isn’t based on expression. If I’m right there will be another suite with an even more simple cake.

    Time123 (eb65d0)

  54. Kevin, care to elaborate?

    Time123 (eb65d0)

  55. Prediction:

    Like the filibuster, how these things are handled will be determined by who is in power. As long as the Democrats remain in power, the argument will be about “keeping lies off the Internet.” If the GOP is back in power, it will be about “freedom of expression.” Rince, repeat.

    Kevin M (ab1c11)

  56. Kevin, care to elaborate?

    Trump hires stupid lawyers.

    Kevin M (ab1c11)

  57. Kevin, I meant what Tort you think they missed. And I’m not saying “nu uh” I’m curious what you see.

    Time123 (eb65d0)

  58. 48.It’s amazing how Trump is a Rorschach test of his own. If Trump made a comment about chocolate chip cookies at a rally and winked at the camera there would be a run on them in some areas and in others people would be posting videos of themselves dumping their cookies into the garbage on Instagram. Twitter and Facebook would ban mentions of them and YouTube would demonetize any video about them going back to 2016 and give strikes going forward. The NYT would have an entire project devoted to the racist history of chocolate chip cookies. Baking them at home would be a hate crime.

    OTOH, he does eat pizza w/a fork.

    DCSCA (f4c5e5)

  59. @26. There’s no such thing as bad publicity. Keep the name in the press cycle.

    Ask Cruz when he pops outta Trump’s butt for a gasp of air; he does exactly the same thing.

    DCSCA (f4c5e5)

  60. Somewhere there exists the test or tipping point where a cake stops being just food, and becomes art that’s governed by the first amendment.

    Food as art?

    Visit the MoMA; view a Warhol:

    https://www.wikiart.org/en/andy-warhol/campbells-soup-cans-1962

    DCSCA (f4c5e5)

  61. …..the colors were picked to symbolize the gender transition.

    The colors per se aren’t the issue, it became an issue only when the customer explained what the cake was for.

    “Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female,” judge A. Bruce Jones wrote in his ruling. “Defendants are, however, willing to make cakes for non-transgender individuals that reflect that person’s gender. And Defendants would ‘gladly’ make an identical-looking cake for other customers.”

    See link at #18 for source.

    Rip Murdock (d2a2a8)

  62. If his lawyers are smart, they will be drawing their pay after they put in each billable hour.

    Jim Miller (edcec1)

  63. But as to what he might argue is that Facebook, et all, constitute the modern public space. The town square. Sure, it is private property, but there are rulings that say that owning the public square does not allow censorship of discourse therein.

    The counterargument is, well, build your own public square, but we have seen that attempted and fail by actions of other infrastructure gods. If the public square is entirely privately owned, particularly by an oligarchy with similar views or an interlocking set of controls, then the 1st Amendment is dead.

    Note: I do not defend Trump, his person or his views. But it is the repugnant speaker who the 1st Amendment MUST protect to have any meaning.

    ————-

    Examples: IN 2017 (Packingham v. North Carolina) (9-0) the SC said that states cannot bar sex offenders from the Internet because cyberspace “is one of the most important places to exchange views.” While this only speaks to what states may do, it firmly states that the Internet is an important place to exchange views. That is one test that is passed; it is a large part of the public square.

    In 2021, Justice Thomas wrote a concurrence to Biden v Knight (a then-moot case about Trump and Twitter) to assert that there were a line of cases involving common carriers and public fora run by private companies where first amendment rights were upheld, and a long history of enfocing equal access to businesses serving hte general public on outer grounds.

    Kevin M (ab1c11)

  64. *et al

    Kevin M (ab1c11)

  65. @53

    Frosty, I think they’re trying to make the cake as simple as possible (that’s pretty simple btw) to show that his refusal isn’t based on expression. If I’m right there will be another suite with an even more simple cake.

    Time123 (eb65d0) — 7/7/2021 @ 1:39 pm

    Time, I’m familiar with this case.

    That really isn’t the issue. The issue here is the lawfare tactic designed to disfavor certain creed (ie, religion) in the commerce sphere. I don’t understand why there isn’t such a groundswell to recognize that this is simply harassment.

    Masterpiece Cake will sell to anyone. The only “line” is if there’s an artistic request that contravene the owner’s own creed. The plantiff literally ask the owner if he could create a Satan cake holding a dildo (or some permutation of that).

    Masterpiece Cake isn’t the only bakery in town. There’s no reason to do this, other than to harass the owner by abusing the court system and it’s a shame that the judges don’t really acknowledge that.

    I mean, essentially what the plaintiff is arguing is that the law should force Jewish bakers or making a cake to praise the holocaust or a muslim bakery making a prophet cake. No one in their right mind should agree that the law forces these bakery against their will in such fashion. Why doesn’t the owner of Masterpiece cake get the same considerations??

    whembly (fbaaf7)

  66. Time123 (eb65d0) — 7/7/2021 @ 1:39 pm

    If I’m right there will be another suite with an even more simple cake.

    The issue is always about expression. The entire point is to force a Christian to do something against their will. As has been pointed out numerous times, no one is forcing these issues with Jews or Muslims.

    The person could have gotten the cake if they didn’t tell the baker what it symbolized. For some reason some people see that as evidence of homophobia. But the fact that there is an expression involved is baked into your description. As soon as there isn’t an expression he gets the cake. This is clear from what the baker has said so far and also there’s no evidence of him requiring The Oath of the Heterosexual(tm)(c) before selling someone chocolate chip cookies.

    frosty (f27e97)

  67. There’s a difference between denying services based on individual behavior and denying services to members of a protected class.

    There’s a fine line when you get to protected behavior.

    Kevin M (ab1c11)

  68. While Trump’s legal eagles are quite likely to poison the well, there are important policy and legal questions regarding the degree to which viewpoints in the public square can be controlled by private entities.

    While I am hesitant to use the “Living Constitution” argument, clearly we have a situation where “speech” has entered a new dimension unknowable to the Founders or even to legislators of the past. The Federal Communications Act of the 1930s attempted to work through this issue with broadcasters and telephones. Much of that is probably applicable, but has not been applied coherently or with any real consensus. Ideally, legislators would sort this out but do not seem to be getting there and the issues involved are increasingly important.

    I do think that when a former President is banned from much of the public square, and was even edited in his last months in office, that push has come to shove. If the Congress won’t or cannot act, then the courts will have to. Sadly, Constitutional principles allow only blunt objects to attack this with when you really want some more finesse.

    Kevin M (ab1c11)

  69. Kevin, thank you for elaborating on the tort.

    Frosty, We do force other religions to act against their faith in some circumstances. Drivers from faiths that abhor alcohol and dogs can’t refuse fairs with guide dogs. And again, I don’t think he should be forced to create art that expresses a message he disagrees with. He has the right to be a bigot. But I don’t know where the line between “cake as art” is exactly.

    https://abcnews.go.com/International/story?id=2827800&page=1

    Time123 (eb65d0)

  70. Kevin @68, from a limited government POV I *like* that private citizens can tell the president to pound sand when they think he’s being too much of a jerk. But I don’t think they should have in this case. Also, getr seems to be going well so far.

    Time123 (eb65d0)

  71. @67, I just meant that there’s a difference from denying service to all members of a protected class and individual from hat class based on their specific behavior.

    Time123 (eb65d0)

  72. Whembley: “Time, I’m familiar with this case.”

    Oh really

    Whembley: “The plantiff literally ask the owner if he could create a Satan cake holding a dildo”

    Not even close

    Frosty: “The person could have gotten the cake if they didn’t tell the baker what it symbolized”

    This is true as noted by the judge….but the judge also noted that “Defendants would ‘gladly’ make an identical-looking cake for other customers” which led to the conclusion that: “Defendants’ willingness to serve the LGBT community in some circumstances is premised on a ‘limited menu’ offering that courts have repeatedly rejected”. Why is the cake baker uniquely positioned to deny services based on what the customer may be thinking or celebrating once they have the cake?

    AJ_Liberty (ec7f74)

  73. BTW, I see no resemblance whatsoever to the cake/bake/gay wedding cases. Those are 14th Amendment cases (at best) and this is primarily a 1st Amendment case. There are some fallback similarities, but content is far more important in one than the other.

    Note, if I were baking wedding cakes, I’d bake the cake and let the user assemble the decoration on top from individually-sold pieces.

    Kevin M (ab1c11)

  74. Kevin, I agree with you that it’s a tangent. But the cake thing is big part of the story that feeds the right wing persecution complex. As is the idea that social media is biased against conservatives.

    Time123 (9f42ee)

  75. Feeds the persecution complex as you say, “bake the cake, bigot.”

    Cognitive dissonance.

    NJRob (8a4f08)

  76. It is a class action lawsuit. Sean Hannity thinks it is somehow strengthened by a new Florida law – but this is in federal court.

    Sammy Finkelman (51cd0c)

  77. Here’s song for Donald Trump.

    Jim Miller (edcec1)

  78. Rob,

    1). He is a bigot.
    2). I’ve been clear that if the cake is speech he shouldn’t be compelled to make it.
    3). Yup, persecution complex.

    Time123 (9f42ee)

  79. Here’s a song. It should be played at every Trump rally with, perhaps, slightly revised lyrics.

    Jim Miller (edcec1)

  80. whembly (fbaaf7) — 7/7/2021 @ 2:08 pm

    Masterpiece Cake isn’t the only bakery in town. There’s no reason to do this, other than to harass the owner by abusing the court system and it’s a shame that the judges don’t really acknowledge that.

    The judge said this case wasn’t created but ut was.

    They just don’t want any contradiction to their beliefs among people they will interact with.

    Ina somewhat different example in California….

    https://nypost.com/2021/07/06/furor-over-trans-in-la-spa-proves-progressives-arent-really-feminists-after-all

    Your first visit to a Korean spa can be a bit . . . jarring, if you don’t know what to expect. I’ll be blunt: Everyone is naked, and you’re required to be, too. You enter the locker room and leave behind everything: phone, wallet, shirt, shoes — and all of your modesty.

    What makes it tolerable is that it’s a truly safe space: We’re all real women….Women are comfortable walking around naked because we’re surrounded by other women.

    But at a spa in California called Wi Spa, that safety has fallen victim to the latest intrusion of gender ideology.

    The spa found itself at the center of a firestorm recently after a biological male who self-identifies as female entered the female-only, nude areas….The hullabaloo…got physical over the weekend, as hard-line gender ideologues violently attacked women and men who objected to the intrusion.

    Transgender activists believe the customer has a right to be in a female-only area on the sole basis of subjective self-identification.

    There is a strong ideology regarding sex and gender that says everybody (they can reach/who matters) has to see things their way.

    Sammy Finkelman (51cd0c)

  81. It is a class action lawsuit. Sean Hannity thinks it is somehow strengthened by a new Florida law – but this is in federal court.

    The class needs to be certified by a court, just calling a lawsuit a class action does not make it so. In addition, Hannity doesn’t seem realize that the Florida law was a) a state law (as you noted) and b) blocked by a Federal judge last week.

    Rip Murdock (d2a2a8)

  82. Grim but inevitable:

    Search for Survivors in Miami-Area Collapsed Condo Is Called Off

    The 14-day effort to find survivors of the collapsed condo was called off, with 86 people unaccounted for, Miami-Dade County Mayor Daniella Levine Cava said.
    ……
    Search teams found eight more victims at the Champlain Towers South site Wednesday, bringing the total number of confirmed dead to 54, Ms. Levine Cava said Wednesday evening. No survivors have been found since June 24, the day the building collapsed.

    Of the 54 victims found, officials have identified 33 people……..
    ………
    Miami-Dade Fire Chief Alan Cominsky said Wednesday that search crews have found no indication that any of the victims found so far survived the initial collapse of the building.
    …….

    Rip Murdock (d2a2a8)

  83. The list of missing was inflated. It was based on some partial descriptions or just aname sometimes.Its sood at 109 this morning but was probably more around 70.

    And Hannity did not explain himself on his radio show. Somewhere he probably heard someone give some (almost certainly faulty) legal analysis.

    Sammy Finkelman (51cd0c)

  84. Rob,

    1). He is a bigot.
    2). I’ve been clear that if the cake is speech he shouldn’t be compelled to make it.
    3). Yup, persecution complex.

    Time123 (9f42ee) — 7/7/2021 @ 4:37 pm

    He’s not a bigot.

    By you’re definition you’re a bigot for being intolerant of his beliefs.

    A Christian following his faith is faithful. Expecting him to turn his back in God is abhorrent.

    NJRob (a917b8)

  85. The fact that his bigotry is based on his religion doesn’t change what it is, anymore then people who used their faith to justify slavery, murder, or the subjugation of women get a pass.

    The guy doesn’t like gay ppl because they’re gay. That’s bigotry.

    Time123 (9f42ee)

  86. It is natural for lawyers to try to analyze the legal aspects of this, but it is better understood as just another Trump scam, intended to raise money from the suckers.

    For much of his career, there has been no scam too small for him to pull and no product too cheesy for him to hawk, whether it was steaks or ties or vodka or vitamins. That last one involved people sending in a urine test, after which they’d receive a package of vitamins supposedly tuned to their unique metabolism. You can guess how it ended.

    If you missed the vitamin scam — I had — here’s a link.

    We can be sorry for his thousands of victims, and still wish they would look at his record before falling for this latest scam.

    Jim Miller (edcec1)

  87. Good point jim

    Time123 (9f42ee)

  88. AJ_Liberty (ec7f74) — 7/7/2021 @ 3:18 pm

    Why is the cake baker uniquely positioned to deny services based on what the customer may be thinking or celebrating once they have the cake?

    Because this isn’t what’s happening. The baker is being asked to make a custom cake to express a specific statement. We’ve also discussed this enough to know that it’s not about what the customer “may” be thinking. You’d have a case if the customer walked in, pointed at an existing cake, and asked to buy it without modification to celebrate his event. In that case it’d be fair to say the baker was refusing service to a particular class of person.

    The issue is demanding specific performance and compelling speech.

    This would be clearer if this were a case of demanding a songwriter produce a song about being gay. No one would expect there to be a legal right to compel that or pay a fine or be denied the right to continue selling songs. Imagine if someone asked a painter for a portrait of them having sex with their partner. Would anyone think the artist should be compelled to do that or suffer consequences? The only difference is some people just don’t agree with the baker and are willing to ignore the underlying principle.

    And it doesn’t matter if this is a protected class. Protected classes don’t get to demand specific performance or compel speech. The baker has the right to refuse any custom request for any reason.

    frosty (f27e97)

  89. Time123 (9f42ee) — 7/7/2021 @ 5:17 pm

    The game is over if not baking a cake is being equated with slavery, murder, and the subjugation of women. The sharks been jumped and you did it in your best leather jacket.

    frosty (f27e97)

  90. When you permit your opponent the position that the baker must make the cake absent a religious or speech exception, you’ve lost 99% of the battlefield.

    Nobody should be obligated to bake a cake. For any reason. A cake is not a necessity. Nobody has died for absence of cake. It’s a luxury, and nobody has a right to compel others to provide him with luxuries.

    You wanna cake? Learn how to bake!

    nk (1d9030)

  91. Frosty, Keep in mind I’ve been saying all along that; If the cake is speech he can’t rightly be compelled by the government to make it. basically I agree with what you wrote in 88, under the assumption that making a custom order cake is speech.

    Now Rob’s called me a bigot (twice) because I’m making a moral judgment that the baker is bigoted against gay people. I agree the things I listed aren’t similar. But what’s the rule Rob’s proposing? It seems to be that any action taken out of religious belief can’t be judged. So I proposed some actions with historical precedent and asked how his rule would apply to them. Is judging those actions taken out of faith also abhorrent?

    Time123 (9f42ee)

  92. NK, So you’re categorically opposed to requiring businesses generally open to the pubic not to discriminate against protected classes?

    Time123 (9f42ee)

  93. But you ignore that he’s served gay people without incident countless times. He’s given them off the shelf cakes, birthday cakes, graduation cakes, etc. You want him to violate his religious beliefs and bake a cake celebrating immoral behavior that runs contrary to his faith. That is direct discrimination based on his religious beliefs and a bigoted act towards a devout Christian.

    It’s completely absurd that we’ve turned the Constitution on its head and gotten away from freely practicing religion to you must stamp out all religious belief in the public square and encourage immorality.

    Telling the Emperor he has no clothes is impermissible in leftist society.

    NJRob (a917b8)

  94. NK, So you’re categorically opposed to requiring businesses generally open to the pubic not to discriminate against protected classes?

    Yes! I’ll make an exception in my categoricalling for that category of businesses which are unquestionably public accommodations providing necessities to sojourners. Which was the first case, Heart of Atlanta Motel, Inc. v. United States, and should have been the beginning and the end.

    nk (1d9030)

  95. BTW, “protected classes” are a term of art in Fourteenth Amendment jurisprudence for equal protection when it comes to government action, but since I understood what you meant ….

    nk (1d9030)

  96. Time123 (9f42ee) — 7/7/2021 @ 6:40 pm

    Yea, not getting into that between you and NJRob.

    I don’t really care if the baker is a bigot. I also don’t see how past examples of Christians not being Christian means we can in fact compel this guy to bake the cake.

    frosty (f27e97)

  97. 86. Jim Miller (edcec1) — 7/7/2021 @ 5:26 pm

    If you missed the vitamin scam — I had — here’s a link.

    There’s nothing there that shows it was a scam. It doesn’t say that they didn’t test the urine, or that they didn’t provide a different formulation of vitamins according to the urine test. They had 48 formulations.

    The only proof that it was nonsense is that it wasn’t FDA approved, but that doesn’t make it all nonsense. They don’t give one example of how it was nonsense. Now it probably was in most cases. And the test seems overpriced. But the only argument is that it wasn’t FDA approved.

    The article gives two instances where specific vitamins or collection of vitamins is actually recommended for specific people by the FDA (more would be by doctors.)

    One is the elderly and women who might become pregnant. But that’s not the best you can do. A urine test would help you much with the elderly, but there are pregnancy tests. Even before pregnancy, folic acid is recommended. And Vitamin B6 will take care of morning sickness but that’s not generally recognized and it is in no one’s economic interest to spend the money so as to be able to make that clam. There once was a pill that combined Vitamin B6 with something else that was taken ff the market because of maybe some problems. But Vitamin B6 produced the effect.

    Sammy Finkelman (51cd0c)

  98. You could test for low levels of vitamins or too much and give different vitamins according to the results. Now with 48 preset formulations, it’s likely there were both too many different formulations to go around and too few to care of any deficiencies that might be noticed – and we don;t know what kind of nutritionists, if any, developed them. Or if any doctors were consulted.

    Sammy Finkelman (51cd0c)

  99. @72

    Whembley: “Time, I’m familiar with this case.”

    Oh really

    Whembley: “The plantiff literally ask the owner if he could create a Satan cake holding a dildo”

    Not even close

    Oh?
    https://www.newsweek.com/colorado-baker-protagonist-satan-dildo-cake-other-bakeries-wouldnt-create-1077250

    Is that not the same plantiff?

    whembly (ae0eb5)

  100. #97: Sammy, may I gently suggest that you read the Stat article again, more carefully?

    For example:

    Among other claims, The Trump Network asserted that it could use a urine test to recommend customized nutritional supplements, its signature products. It also offered products that purportedly tested for allergies and bone health. But scientists said such claims were never backed up by modern medicine.

    “They make an outrageous statement, which is that this testing and supplement regimen, this process, are a necessity for anyone who wants to stay healthy,” said Dr. Pieter Cohen, a general internist at Cambridge Health Alliance and an expert on dietary supplement safety who reviewed some of The Trump Network’s marketing materials at the request of STAT. “That’s quite insane.”

    A “necessity”? Which is why it is used in Okinawa, a place famous for the health and longevity of its inhabitants. /sarc

    Sammy, most of your comments before this last one have been thoughtful, and usually based on facts that you link to, or facts that can easily be found.

    Jim Miller (edcec1)

  101. “Is that not the same plantiff?”

    It’s just not the same encounter that has made it to court. Bakers can reject any message or imagery requested on a cake…provided they reject the same message or imagery for any other customer. So pornographic imagery is not a thorny legal question. Colorado bakers open to the public cannot discriminate based on race, religion, or sexual orientation because of Colorado law. In this specific case, Phillips initially agreed to bake a pink cake with blue frosting on the outside. He then later learned that it would be used to celebrate some sort of transsexual-whateverism….and rescinded his offer. So there was no context-specific message or imagery…..Phillips would be fine with providing the same cake design to a different customer….Phillips just wanted to retain veto control over how the cake might be used….in effect what it celebrated.

    So does this then imply that businesses providing custom haircuts, rings, floral arrangements, calligraphy, etc….all possessing artistic elements….could discriminate based on where the product might be seen or how it might later be used? It’s kind of an astonishing claim when one thinks about it….especially as it butts up against the Colorado anti-discrimination law.

    Well you might say Phillips is just trying to be a good Christian and he’s being forced to participate in celebrations that he (knowingly) finds offensive. But that’s House-that-Jack-Built reasoning that would effectively allow a lot of discrimination….that the state of Colorado specifically wanted to ban. How can you argue that the cake baker can discriminate but not the limo driver or honeymoon planner or the hair stylist or the jeweler? At some point the customer should have some assumed privacy that the baker should not be allowed to police….and at least in Colorado…sexual orientation has been deemed private and not open to discrimination. I don’t see how Phillips wins this…..

    AJ_Liberty (a4ff25)

  102. AJ,

    it’s the same person who has been consistently harassing Mr. Phillips. I’m glad you acknowledge that now.

    As for him “later learning that it would be used to celebrate some sort of transsexual-whateverism” that’s because the anti-Christian bigot told him such after he agreed to make a cake that didn’t have anti-Christian symbolism. This bigot was trying to force a Christian to betray his religious beliefs and kept harassing him with the support of an anti-Christian Colorado government agency.

    It’s a coward Supreme Court that permitted this harassment, just as Alito and Thomas predicted.

    NJRob (eb56c3)

  103. Having now glanced through the two suits (which are quite similar), I see my observation that it would be a stupid muddle is validated. I have heard better constitutional arguments in a redneck bar.

    There are issues here, but Donald Trump is exactly the wrong person to be bringing them. What’s particularly annoying is that Justice Thomas published the “answers in the back of the book” but Trump’s “legal team” still flunks.

    Kevin M (ab1c11)

  104. There is an intere3sting discussion I’ve seen regarding Section 230. Originally it was part of a larger law, the Communications Decency Act, nost of which was struck down on 1st Amendment grounds. But 47 USC Section 230 remains.

    I’m cribbing some of this from a discussion on Volokh @ Reason, and trying to work through what he’s saying. Volokh speaks of his view here changing, and the key words seem to be found in the following:

    Title 47 U.S.C. § 230(c)(2) states:

    No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

    Now, can a state pass a law assigning liability to deletions that are not “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” within the original confines of the CDA as it defined those terms? Say they are simply lies, like Bush was behind 9/11 or Trump really won? Can the federal courts strike such a law down, pointing to 47 USC 230? What protection does Section 230 afford?

    Volokh beleives the answers are no and none, and the state law should stand.

    Kevin M (ab1c11)

  105. SHorter: Is “or otherwise objectionable” limited by the scope of the CDA, or is it to be construed as open-ended?

    Kevin M (ab1c11)

  106. you wanna cake learn how to bake
    Indeed.

    mg (8cbc69)

  107. NJRob, you’ve called me a bigot, you’ve ignored my questions, and now you’re misrepresenting what I’ve repeatedly said. Since you usually seem honest I’m going to assume you’re not paying attention to what I actually write and step away from this.

    Time123 (9f42ee)

  108. @96 frosty, that wasn’t the point of my question. But I share your lack of concern about the guy being a bigot. Worlds full of bigots of one sort or another.

    Time123 (9f42ee)

  109. Kevin M, I’m surprised they haven’t made a bigger deal about Warren’s threatening statements towards Amazon.

    Time123 (9f42ee)

  110. AJ_Liberty (a4ff25) — 7/7/2021 @ 10:22 pm

    You are misrepresenting the facts of the situation.

    He then later learned that it would be used to celebrate some sort of transsexual-whateverism … So there was no context-specific message or imagery

    No and I think you’re doing this on purpose now. He was told before making it that the choice of colors and the inside/outside relationship between the colors was a context specific message and imagery. This is the opposite of what you are saying.

    It’s kind of an astonishing claim when one thinks about it

    It’s not at all. Artists of a variety of types do this all the time, especially with music. Brand reputation management is the underlying mechanism of cancel culture. IP owners can breach a contract, or often have stipulations in the contract, for just this purpose. They’re called a morals clauses.

    How can you argue that the cake baker can discriminate but not the limo driver or honeymoon planner or the hair stylist or the jeweler?

    I don’t. They all can. Find a different driver, planner, stylist, or jeweler. None of those are monopolies or are necessities and they are all private individuals with 1st amendment rights.

    At some point the customer should have some assumed privacy that the baker should not be allowed to police

    This is another thing that literally isn’t happening in this case. The customer told the baker what was going on. If the customer had respected his own privacy he would have gotten the cake.

    The Colorado law is garbage to the extent that it results in compelled behavior or speech.

    frosty (f27e97)

  111. AJ, it’s established fact that the baker was asked to make a cake. Then after he agreed told that it would symbolize somethings doesn’t like. It’s clear that this is a set up to show that he doesn’t like gay people and make the case about that. I also think the design of the cake is very simple to try to eliminate the argument that making this cake is work of artistic creation. Our constitution doesn’t allow compelled speech, so if this cake is speech (and it might be) he can’t be compelled to make it.

    Frosty, did you see my comment with the link to Muslim taxi drivers that refused to transport dogs or alcohol? Wonder what your thoughts on that are.

    Time123 (eb65d0)

  112. NJRob: “This bigot was trying to force a Christian to betray his religious beliefs”

    Is his religious belief that he can’t in any way help transgender people celebrate anything? Where in the Bible does it say anything remotely like that? I seem to recall a lot of “love your neighbor” messaging….and not much baking guidance. If Phillips is so interested in distancing himself from sinful behavior…..why doesn’t he police other customers, say denying wedding cakes to atheists, divorced individuals, or those fornicating outside of marriage? Sin is sin, right? Claiming that religion provides cover for bigotry has a long history.

    See Newman v. Piggie Park Enterprises. In that case a BBQ chain owner attempted to deny service to a black minister’s wife because his religion…purportedly….strictly forbade mixing of the races. The presiding judge (Simons) notes: “This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” The same goes here for restricting custom cakes to LGBTQ customers specifcally called out for protection in Colorado Law. You simply can’t in effect say I don’t like you or your behavior so I will only provide a limited menu of items to you. Scardina may be a real piece of work with too much time on his/her hands but until the law goes way back in time to not view a cake shop like this as a public accommodation, Phillips can’t discriminate.

    AJ_Liberty (a4ff25)

  113. After reading Whembly’s Newsweek link, I can reasonably conclude that plaintiff is a bigot. He spent his time purposely, and continuously, going after a member of a protected class until he satisfied AJ and Time by perfecting a trap to use against the Christian baker.

    At the very least, the baker isn’t seeking out members of the apparently preferred protected class to harass them into a corner.

    BuDuh (7bca93)

  114. 104, There are two terms in that excerpt from the Communications Decency Act that need definition:

    “good faith” and “otherwise objectionable.”

    Trump is probably charging that his removal was not made in good faith, and the companies could claim that lies about important matters are otherwise objectionable, although they probably will claim and have claimed that his words could lead to violence – but that is a tough row to hoe (or a big hill to climb.)

    Someone called up a radio show the other day. He was put in Facebook jail (4th offense) for a week because what he was doing was that every time he ran across a story about Jan 6 – he made a claim that they were right because Biden is a bad president (specifically that he was trying to cut U.S. oil production)

    But that is not the issue.

    Sammy Finkelman (51cd0c)

  115. 112. His religious belief is that he is helping people celebrate sin. I mean isn’t that obvious? To say he can’t do that is to say he can’t call it a sin. Which is the true aim of the lawsuit.

    Sammy Finkelman (51cd0c)

  116. Kevin M, I’m surprised they haven’t made a bigger deal about Warren’s threatening statements towards Amazon.

    They do seem to be basing part of this on the idea that an administration that controls anti-trust prosecution can control its possible targets, but the presentation of that is pretty poor.

    Since IANAL, it surprises me that I could write a better brief.

    Kevin M (ab1c11)

  117. But scientists said such claims were never backed up by modern medicine.

    That doesn’t mean anything, because the standards of proof are far too high. I know that when somebody says not backed up by modern medicine they mean not proven by double blind random clinical trials – no, more than that – that would not be enough to be considered backed up by modern medicine, and the reporter should really know that.

    That’s not a good argument. The question is: Is there a basis for such claims?

    “They make an outrageous statement, which is that this testing and supplement regimen, this process, are a necessity for anyone who wants to stay healthy,”

    Now that is something prima facie false. Now note that Dr. Pieter Cohen doesn’t say that it is false, but merely that it is outrageous and quite insane. (because there is no basis for it that he knows)

    It may have been bad science, and most of it probably is, but the STAT article does not establish that. Merely not being accepted universally doesn’t make it bad science and certainly doesn’t make it a scam: something the seller knows to be false. It is just highly improbable.

    The STAT article is forced to rely on the disclaimer that the vitamin seller is legally required to make: that it is not claimed to be a cure for any disease.

    A “necessity”? Which is why it is used in Okinawa, a place famous for the health and longevity of its inhabitants. /sarc

    I don’t see the reference to Okinawa in the article..

    Sammy, most of your comments before this last one have been thoughtful, and usually based on facts that you link to, or facts that can easily be found.

    Sammy Finkelman (51cd0c)

  118. Is his religious belief that he can’t in any way help transgender people celebrate anything? Where in the Bible does it say anything remotely like that?

    “And He answered and said to them, “Have you not read that He who made them at the beginning ‘made them male and female,’” — Matthew, 19:4 Echoed in many other passages. I wouldn’t go there.

    nk (1d9030)

  119. 116. Kevin M (ab1c11) — 7/8/2021 @ 6:14 am

    , it surprises me that I could write a better brief.

    It doesn’t have to be good.

    It merely needs to make a headline. None of the news reports about it judge the quality of the argument.

    Sammy Finkelman (51cd0c)

  120. The different takes on this topic remind me of this quote attributed to Lincoln:

    How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn’t make it a leg.

    One group holds that saying a “simple cake” is a symbol doesn’t make it a symbol and the other holds that saying a symbol is just a “simple cake” doesn’t make it a simple cake. There are simple crosses and elaborately ornate crosses, which one does the bigot plaintiff hold less in contempt?

    Once the bigot plaintiff decided to confess that the cake was no longer a simple cake but actually a simple symbol, he changed the terms of what the baker agreed to make.

    BuDuh (7bca93)

  121. After reading Whembly’s Newsweek link, I can reasonably conclude that plaintiff is a bigot.

    Mentally ill who turns nasty when his delusion is not affirmed.

    nk (1d9030)

  122. It is enormously improbable that there would be 48 special regimens.

    Sammy Finkelman (51cd0c)

  123. And since this post was about Trump …. ~_^

    nk (1d9030)

  124. “if this cake is speech (and it might be) he can’t be compelled to make it”

    Is a cake with blue frosting sufficiently expressive so that a reasonable observer would both understand that it was conveying celebration of transgenderism and that the baker was endorsing that celebration? That seems pretty thin to me. If the baker is willing to create pink cakes with blue frosting for one customer, then he cannot discriminate against a second customer because of sexual orientation. That’s Colorado Law.

    AJ_Liberty (a4ff25)

  125. Is a cake with blue frosting sufficiently expressive so that a reasonable observer would both understand that it was conveying celebration of transgenderism and that the baker was endorsing that celebration?

    The bigot plaintiff thought so, that is why he ordered it that way and shared the specifics of its symbolism with the Baker. I assume any reasonable observer, once told the meaning, would understand the message.

    It was impossible for the reasonable Christian baker to not know what the cake was conveying after he was told by the bigot plaintiff.

    BuDuh (7bca93)

  126. I honestly believe that everyone here actually understands what took place with bigot v baker. I have made my argument and any defense of my argument will look just like my argument, so I will bow out and not waste anymore time.

    I doubt I can convince anyone who believes that the construction of the symbol changes the intent of the symbol to look at the issue any differently.

    BuDuh (7bca93)

  127. Sorry about how sloppy that last sentence came out.

    BuDuh (7bca93)

  128. I think buduh is on the right track.

    Symbolic religious expression is by nature not directly literal. That’s not the baker’s fault. That is the narrow opportunity the plaintiff exploited to harm those he is intolerant of.

    I think AJ’s counterexample shows the classic solution. Just order the pink and blue cake without demanding it’s maker knows the moral message, unless the purpose is power against someone’s faith. Most of us go or whole lives without forcing people to violate themselves. It’s not hard.

    Dustin (9524ba)

  129. 121. If it is not affirmed, it is not effective. It is not enough for the person to think so – it must be accepted as real.

    Sammy Finkelman (51cd0c)

  130. The plaintiff probably does not belong to any organized religious community, so the people who must acknowledge the gender transition is pretty much everyone.

    Sammy Finkelman (51cd0c)

  131. @124, I would argue that it is. But obviously the line exists somewhere.

    Time123 (9f42ee)

  132. I’ll end with one last point so nk can get back to talking about Trump and section 230.

    For those arguing that it matters whether Phillips knows the context of selling a blue cake….would you make the same argument for religious discrimination? Meaning, what if a Mormon entered Masterpiece cake shop. Many Christians consider Mormons heretics. If Phillips understood that his custom cake would be used to celebrate something uniquely Mormon….say the customer announced it upon ordering….would Phillips be clear of the anti-discrimination statute because he was being forced to celebrate something heretical? Or change the hypothetical to Muslim…and celebrating the Prophet’s birthday. I sense a court would view Phillip’s interests (his participation in said celebration or assumed endorsement) as far more attenuated than the state’s interest in curbing discrimination in public accommodation (ie, Frosty’s concession of a slippery slope). Religion is protected….sexual orientation is protected. That needs to mean something.

    AJ_Liberty (a4ff25)

  133. I’ll end with one last point so nk can get back to talking about Trump and section 230.

    Heh! My comments 121 and 123 are best read together.

    nk (1d9030)

  134. Off topic public service announcement:

    Anyone who remains unvaccinated for Covid has a death wish.

    Kevin M (ab1c11)

  135. Scardina may be a real piece of work with too much time on his/her hands but until the law goes way back in time to not view a cake shop like this as a public accommodation, Phillips can’t discriminate.

    AJ_Liberty (a4ff25) — 7/8/2021 @ 5:58 am

    Hypothetical:

    I own and operate a small booth at a mall. At this booth, I do caricatures of anyone who cares to sit down for one. I charge the same set price for every caricature. However, I also offer a custom option, where I will add images or text to your caricature — so you can, for example, look like you were on the French Riviera, or wearing a baseball uniform.

    One day, someone makes a request that I find offensive on religious grounds. I say, “Sorry, I won’t add devil horns and a pitchfork to your figure, much less bubble text underneath saying ‘Hail Satan!’ You may make another request, or I can do an ordinary caricature for the base price, but I won’t do that.”

    Am I allowed to refuse the custom job? Or must I perform it anyway, because I would have no problem with another custom request to add a cross in the background and bubble text saying “Christ is Lord”?

    If I am black, am I allowed to refuse a custom request to add a burning cross and a Confederate flag to a caricature, when I would have no problem adding a bald eagle and an American flag to another request?

    If I am Jewish, must I draw swastikas on request? If I am Asian, must I draw my customer being pulled in a rickshaw by a smiling, slant-eyed, coolie-hat-wearing version of me, just because that floats their racist boat today? In short, if I say I offer custom art, do I then have to take any custom request made of me, regardless of my feelings about using my talent to communicate a message I find offensive?

    To me, the answer is clear — though I must offer the same base caricature service to anyone, I am free to turn down any custom request for any reason or none at all. But I’m interested in hearing your thoughts.

    Demosthenes (8d845f)

  136. The Babylon Bee weighs in:

    Big Tech Sweating After Learning Trump Case Will Be Tried Before Newly Appointed Judge Mike Lindell

    “I will be hearing the case brought by Mr. Trump regarding the crimes against humanity perpetrated by Facebook and Twitter when they kicked the one true president off of social media,” said Judge Lindell in a rare statement to the media.

    Trump has announced he will be pursuing the death penalty even though his lawyers are telling him he can’t do that in a class-action lawsuit.

    The entire case will be available on pay-per-view this fall.

    Kevin M (ab1c11)

  137. Look, comrades, Seinfeld’s Soup Nazi was a comedy routine. Nobody goes into business to whimsically turn away paying customers. At the same time, how many people do you know for whom only a cake from only particular bakery will do?

    What we have here is a nasty sicko making miserable the life of a working man trying to earn an honest living. With the assistance of a State which wants the tourist and hospitality dollars of the nasty sicko’s cohorts and sympathizers.

    nk (1d9030)

  138. from only *one* particular bakery

    nk (1d9030)

  139. Actually, let me amend my example @ #135 to bring it more into line with Phillips’s case.

    My base service at the booth is pre-drawn artwork, framed and price-tagged. Caricatures — of ANY kind — are my custom work.

    If the Satanist from my first example walks up, sees my artwork of three crosses on Calvary, and asks to buy it, I don’t know that I would have grounds on which to refuse. But I still think I’m on firm ground in refusing his custom request.

    Demosthenes (8d845f)

  140. NJRob, you’ve called me a bigot, you’ve ignored my questions, and now you’re misrepresenting what I’ve repeatedly said. Since you usually seem honest I’m going to assume you’re not paying attention to what I actually write and step away from this.

    Time123 (9f42ee) — 7/8/2021 @ 4:04 am

    It’s a rhetorical device just like you constantly calling the subject a bigot. It’s there to drive an emotional response. You didn’t need to repeatedly call someone following his Christian faith a bigot, but you chose to do so because you felt it weakened his religious freedom and constitutional arguments. when you are trying to take away his rights, you need to look at the position from his strongest position and work backwards. Why won’t you do that?

    And I really do feel you are acting in a disrespectful manner towards devout Christians. It’s no different than tarring him as a racist. It’s meant to end a discussion, not start one.

    NJRob (eb56c3)

  141. If Democrats want to lose more Americans, they should keep pushing this nonsense.

    Those who push the most for their definition of “tolerance” are intolerant and the most vociferous are not much better than vermin.

    Colonel Haiku (2601c0)

  142. Demosthenes, I’m comfortable with the conclusion that artists serving the public can reject any custom message or imagery requested on a product…provided they reject the same message or imagery for any other customer. I like your original hypo because every drawing is in a real sense a custom drawing, which gets closer to Phillip’s claims about his wedding cakes. The question would be could your artist deny a standard unique caricature based on a moral conundrum that the artist has with the individual’s protected sexual orientation?

    nk: “What we have here is a nasty sicko making miserable the life of a working man trying to earn an honest living.”

    I agree that these types of gotchas make for terrible cases because of the lack of good faith….and why we likely won’t see this go to the Supreme Court. Scardina needs a restraining order….and needs to move on from the OCD behavior. In the end, I do agree that the market for cakes is huge….and life is short. On his part, Phillips needs to let go of the notion that God is going to hold him accountable for celebrations with his cake. That’s a pretty cramped Christianity.

    AJ_Liberty (ec7f74)

  143. Ohio Allows Doctors to Deny LGBTQ Health Care on Moral Grounds
    ……..
    The provision allows anyone providing medical care — from doctors and nurses to researchers and lab techs – and anyone paying for that care (namely, insurance providers), “the freedom to decline to perform, participate in, or pay for any health care service which violates the practitioner’s, institution’s, or payer’s conscience as informed by the moral, ethical, or religious beliefs.”
    …….
    Where do you draw the line?

    Rip Murdock (cbadfd)

  144. NJRob, you’re still accusing me of wanting to force him to bake the cake when I’ve repeatedly said otherwise. Please stop characterizing my views as the complete opposite of what I’ve stated.

    Time123 (9f42ee)

  145. No I’m not. I’m accusing you of ignoring his argument for why he won’t make specific cakes.

    NJRob (eb56c3)

  146. Re: Vitamin “scam”

    Thus is still going on. Both of the followingcompannies are advertising over and over on talk radio, and nobosy’d stopping them. One at least claims to personalize the supplement they sell:

    This one sells powdered fruit:

    https://www.balanceofnature.com/our-process

    This one claims to provide a personalized selection of supplements to help people lose weight:

    https://www.njdiet.com

    Helping every patient attain their weight and health goals, we create bioenergetically personalized supplements with a diet plan.

    You’re fully monitored by nutritionally certified personal.

    Sammy Finkelman (51cd0c)

  147. Where do you draw the line?

    Since the article didn’t link the text of the bill(at least I didn’t see the link), and left us clueless as to what was really codified, I imagine some surgeons may draw a line here:

    Surgery

    Before having female-to-male gender-affirming surgery, a person will receive testosterone replacement therapy.

    They may then undergo one or more of the following types of procedure.

    Chest restructuring

    A person undergoing surgery to transition from female to male typically has a subcutaneous mastectomy to remove breast tissue. The surgeon will also make alterations to the appearance and position of the nipples.

    Meanwhile, testosterone therapy will stimulate the growth of chest hair.

    Removal of the uterus, ovaries, and fallopian tubes

    A person may wish to undergo this type of surgery if they are uncomfortable having a uterus, ovaries, or fallopian tubes, or if hormone therapy does not stop menstruation.

    In a partial hysterectomy, a surgeon will remove only the uterus.

    In a total hysterectomy, they will also remove the cervix.

    A bilateral salpingo-oophorectomy, or BSO, involves the removal of the right and left fallopian tubes and ovaries.

    Metoidioplasty

    A metoidioplasty is a method of constructing a new penis, or neopenis.

    It involves changing the clitoris into a penis. A person will receive hormone therapy before the surgery to enlarge the clitoris for this purpose.

    During the procedure, the surgeon also removes the vagina, in a vaginectomy.

    In addition, they lengthen the urethra and position it through the neopenis. To achieve the lengthening, the surgeon uses tissues from the cheek, labia minora, or other parts of the vagina. The aim of this is to allow the person to urinate while standing.

    Another option is a Centurion procedure, which involves repositioning round ligaments under the clitoris to increase the girth of the penis.

    A metoidioplasty typically takes 2–5 hours. After the initial surgery, additional procedures may be necessary.

    A Centurion procedure takes approximately 2.5 hours, and removing the female reproductive organs will add to this time.

    An advantage of a metoidioplasty is that the neopenis may become erect, due to the erectile abilities of clitoral tissue.

    However, a neopenis resulting from a metoidioplasty is often too small for penetrative sex.

    Phalloplasty

    A phalloplasty uses grafted skin — usually from the arm, thigh, back, or abdomen — to form a neopenis. Doctors consider taking skin from the forearm to be the best optionTrusted Source in penile construction.

    Compared with a metoidioplasty, a phalloplasty results in a larger penis. However, this neopenis cannot become erect on its own.

    After a period of recovery, a person can have a penile implant. This can allow them to get and maintain erections and have penetrative sex.

    During a phalloplasty, the surgeon performs a vaginectomy and lengthens the urethra to allow for urination through the penis.

    Disadvantages of a phalloplasty include the number of surgical visits and revisions that may be necessary, as well as the cost, which is typically higher than that of a metoidioplasty.

    Scrotoplasty

    A person may decide to have a scrotoplasty — the creation of a scrotum — alongside a metoidioplasty or phalloplasty.

    In a scrotoplasty, a surgeon hollows out and repositions the labia majora to form a scrotum and inserts silicone testicular implants

    https://www.medicalnewstoday.com/articles/326590#surgery

    BuDuh (7bca93)

  148. when you are trying to take away his rights

    how is this characterization consistent with my repeated comments that shouldn’t be compelled to make a message with which he disagrees?

    Time123 (9f42ee)

  149. I wonder why a Christian plastic surgeon, who decided to work at the VA to help wounded soldiers, may object to this:

    The video starts off by showing how the scrotum is opened in order to remove the testicles, and how the tip of the penis is severed in order to fashion a clitoris. The remaining scrotum sack and shaft of the penis (the long part) are then repositioned to create the vagina’s labia and vaginal canal. We won’t ruin the rest of the video, but as you can see from the short description above, the clip is quite detailed.

    https://www.teenvogue.com/story/male-female-gender-reassignment-surgery

    I skipped the video. The description was enough.

    BuDuh (7bca93)

  150. I’ll add I don’t care why he doesn’t want to bake the cake. It doesn’t matter to me if he has a sincere religious conviction, his faith is a pre-text, or he just says gays are icky. He has a right to free speech which includes not speaking. That right is independent of his motivation.

    Time123 (9f42ee)

  151. OT- Another nail in the coffin of the American century: 10 years ago today– the final flight of the space shuttle program, Atlantis, STS-135, launched July 8, 2011 from Cape Canaveral, FL.

    https://www.youtube.com/watch?v=3deA3BXAnHs

    ‘Bye Bye Birdie…’ – Ann-Margret, 1963

    DCSCA (f4c5e5)

  152. 151. https://www.nbcnews.com/science/space/richard-branson-says-he-can-t-wait-rocket-space-sunday-n1273113

    https://www.cnn.com/2021/07/07/tech/richard-branson-space-flight-risk-scn/index.html

    Jeff Bezos takes off on July 20.

    Elon Musk beat them both, but didn’t go himself sending NASA NASA astronauts – and plans to sell plenty of tickets in 2024.

    Sammy Finkelman (51cd0c)

  153. @143

    Where do you draw the line?

    Rip Murdock (cbadfd) — 7/8/2021 @ 9:51 am

    Isn’t that line in the text of the billing that your excerpted?

    I’m not sure I see a problem with it.

    Isn’t this the same argument that pharmacists refuses to fill abortifacient prescriptions, or why some closely-held corporation like Hobby Lobby can NOT pay for abortifacient in their insurance coverages?

    whembly (849622)

  154. Additionally, I’m struggling as to why that Ohio bill is deemed as “anti-LGBTQ”.

    whembly (a23745)

  155. Demosthenes, I’m comfortable with the conclusion that artists serving the public can reject any custom message or imagery requested on a product…provided they reject the same message or imagery for any other customer.

    Sorry, but that is an unclear, and quite possibly unworkable, standard.

    For example, consider the Confederate flag drawn as one of many flags having flown over, for example, Texas. Now consider it drawn draped behind a burning cross, with text underneath saying “The South Shall Rise Again.” The first might well just be a historical display, a statement of fact not meaning to endorse or promote the Confederate flag any more than, say, the Spanish flag. The second is probably racist.

    So, is it your contention that if I draw the Confederate flag in one context, then I must draw it in any context…and that if I refuse to draw it in one context, then I must refuse in all? That would treat the racist display I mentioned above as essentially equivalent with a drawing of President Lincoln stamping on the Confederate flag.

    Or are you saying that it is the totality of the picture which matters? Because again, I think I would be within my rights to caricature a mousy young woman as an Amazon warrior at her request…while refusing to recreate my efforts for the fat sweaty perv who walked up right as I was finishing, and asked for one just like it. But on your view, I have no idea how I could possibly justify my refusal, since it would be the same imagery.

    This doesn’t even address the problem of what happens if I fulfill one custom request shortly after turning down a substantively similar one, having undergone a legitimate change of heart in the interim.

    I like your original hypo because every drawing is in a real sense a custom drawing, which gets closer to Phillip’s claims about his wedding cakes.

    But my amended hypo is closer to the reality of the situation. Phillips would sell any customer who walked through his door any item in his shop, as long as it was ready-made. The couple who first sued him, or the attorney who is doing so now, could have bought a sheet cake and then written whatever they wanted on it — just like someone could come up to my hypothetical art stand, buy a pencil sketch of an American flag, and then write “DOWN WITH AMERIKKKA” under the flag. I make the art, and sell it to you as-is. How you change it afterward does not involve me.

    The question would be could your artist deny a standard unique caricature based on a moral conundrum that the artist has with the individual’s protected sexual orientation?

    A “standard unique caricature” is a contradiction in terms. But I assume this example might serve — should I be free to refuse to draw someone as, for example, a famous pop-culture figure based (even in part) on the sexual orientation of the customer? I refer you to what I previously said: if it’s a custom request, I should be able to turn it down for any reason or none at all. Because even if the imagery is essentially identical, the message it communicates might change with the customer.

    Take two people who asked me to caricature them as Dorothy from The Wizard of Oz, floating on a cloud over the rainbow. One is an eleven-year-old girl. The other is a 45-year-old man. You may not see any difference between the two cases. I do.

    On his part, Phillips needs to let go of the notion that God is going to hold him accountable for celebrations with his cake. That’s a pretty cramped Christianity.

    AJ_Liberty (ec7f74) — 7/8/2021 @ 9:38 am

    Fortunately for Jack Phillips, you are not the arbiter of what may, and what may not, be considered a legitimate religious belief.

    Demosthenes (8d845f)

  156. @152. NASA beat them all by 60-plus years, Sammy; and the CCCP did as well w/crewed orbital flights. X-15 pilots accomplished what Branson wants to try even earlier. Bezos as well; suborbital flights- up and down in 15 minutes- are nothing new for 2021. And Musk’s LEO ops are substantially subsidized by government financing as it is–as Arthur C. Clarke predicted in 1969/70.

    America’s HSF program has always been reactive, Sammy- and since 1972, going in circles, no place, fast.

    DCSCA (f4c5e5)

  157. Where do you draw the line?

    Well, health care for fat people, smokers, drug users, the promiscuous and the Irish seems like a waste of time.

    Kevin M (ab1c11)

  158. it’s balls to teh wall
    for aesthetics not function
    they silicone grown

    Colonel Haiku (2601c0)

  159. “I trust the capacity of the Afghan military…” – President Plagiarist, 7/8/21

    ROFLMAOPIP

    ‘This letter’s post-marked, Vietnam.’ – Barry Sadler, 1966

    DCSCA (f4c5e5)

  160. @152: Life imitates art Heinlein’s magnificent “Requiem” tells the story of the man who made space flight a commercial enterprise, and who finally want to go into space himself but is prevented by the health authorities, and what he does about it.

    Kevin M (ab1c11)

  161. pro tip on clit clip
    what is one less joy buzzer?
    give up teh cookie!

    Colonel Haiku (2601c0)

  162. And Musk’s LEO ops are substantially subsidized by government financing

    Leftie-talk for someone who sells a service to government for money. As opposed to an “investment” where government gives someone money for nothing.

    Kevin M (ab1c11)

  163. @162. Ignorance is bliss so you’re a happy camper, Kevin; you don’t know what you’re talking about when it come to Space X and U.S. government subsidies.

    Start with this: if Musk had to construct the infrastructure Americans taxpayers already paid for, owned and operated, he’d never have gotten off the ground. His goal is to risk as little of his own capital as possible and as much of the American taxpayer’s as he can.

    DCSCA (f4c5e5)

  164. “I trust the capacity of the Afghan military…” – President Plagiarist, 7/8/21

    That doesn’t make them capable.

    A lot of their equipment is maintained by contractors who are leaving!

    So the plan now is to evacuate all people who have applied for interpreter visas (who passed preliminary screening) to third countries or Guam (because naturally it is impossible for the U.S. to vet them in a timely manner) by early August.

    The queston is whether the Taliban will let that happen. Most likely yes – they are slowing down their advance on Kabul out of fear that the United States will intervene. Meanwhile, they have taken control of the northern border of Afghanistan – leaving all the government employees in place, but collecting a reduced tariff. They are doing very little punishment right now to encourage surrender.

    Meanwhile the central government is being told the border with Tajikistan (and Uzbekistan) is closed. But it’s not.

    I think the Taliban would like to time their complete takeover of Afghanistan for September 11. More cautious than doing it sooner.

    Meanwhile the Administration talks of negotiating (but they won’t even get a negotiated solution like was done with the FARC in Colombia because Pakistan control the Taliban, al Qaeda and local ISIS) or of Civil War or of the Taliban winning six months after withdrawal.

    Sammy Finkelman (51cd0c)

  165. @169. In Heinlein’s stories, it was a commercial business that first made it into space – here it is a commercial businesses that are doing it the second time after the government has abandoned launch vehicles for the most part. If you don’t count Russia and China and the European Union.

    People are claiming that the PRC may actually try to annex the moon or Mars even though the Outer Space Treaty of 1967 doesn’t allow that. Of course they could set up a base.

    https://spacenews.com/op-ed-beijings-troubling-space-ambitions

    Sammy Finkelman (51cd0c)

  166. @160. Piss on Heinlein whimsical BS, Kevin; Arthur C. Clarke’s epilogue to the 1969/70 book, ‘First On The Moon- A Voyage with Neil Armstrong, Michael Collins, Edwin E. Aldrin, Jr.,’ [am re-reading it now] spells it all out with a profound prescience, particularly regarding development of LEO ops. In this era, for the quarterly driven marketplace there is a low to no ROI for commercial HSF operations; that’s why governments do it. And of late, billionaires subsidized w/government financing or fulfilling personal whims. Investors are better served putting their $ into oil wells and Bitcoin–than commercial HSF. And when they have a ‘bad day’– and they will have a bad day as spaceflight is steadfastly unforgiving of human error— what $ there is will dry up for some time. Even Musk boosters dread that day as a service provider; expecting NASA to take the heat– as the customer.

    DCSCA (f4c5e5)

  167. caveat emptor
    a nasty scrotoplasty
    a beanbag bungle

    Colonel Haiku (2601c0)

  168. @165. Commercial space balked at the opportunity in the 1950’s and let the government take the financial risk. The scale and logistics alone spooked the private sector. The flick ‘Destination Moon’ drove commercial HSF space dreams by lofting a trip to Luna– to find uranium.

    DCSCA (f4c5e5)

  169. @165. The ‘space treaties’ mean little to the current PRC. The ’67 OST nd partiularly the more recen ‘Moon Treaty.’ “It has not been ratified by any state that engages in self-launched human spaceflight or has plans to do so[needs update] (e.g. the United States, Russia (former Soviet Union), People’s Republic of China) since its creation on December 18, 1979, and thus it has little to no relevancy in international law.”-source, wikiluntics.greencheese.yummy

    DCSCA (f4c5e5)

  170. Demosthenes, I think I would agree that like photographers, poets, singers, and writers, a sketch artist works in a medium that is traditionally expressive. No question. Further, I would agree that a caricature would fundamentally convey a message about the person sitting for the sketch…and I would also agree that custom sketches that might stray from what I was calling “standard”…meaning sketches of the individual as a baseball player or rock star that are typically shown as work examples….would certainly trigger 1A protections. I think I was originally distracted by all of your examples that were clear content violations of compelled speech….and figuring most sketch artists work assiduously to find common ground….that I didn’t emphasize that the medium certainly matters.

    So, is your hypothetical the same as a cake baker or a gourmet chef for that matter? Does any activity that is artistic or creative qualify as 1A speech? Hair stylist or dress maker? What about a sandwich artist or a landscaper? Both can create “works of art” but can they deny service like a writer who does not want to write copy for Nancy Pelosi? I think that there is a difference and part of it can be adduced from that governments freely regulate hair stylists versus writers.

    Cake decorating in my view is much closer to a gourmet chef. Presentation is a part of the experience but ultimately the cake is functional….you eat it. The cake may be aesthetically beautiful like a well manicured lawn…but it does not convey anything substantive about the celebration. Is it much different than a party streamer or a balloon (hey, balloon artists)? Does someone look at a cake and think, “well the baker is blessing this event”? I would argue, not a completely rational one.

    The Court will need to draw lines. Calling everything with an ounce of creative input artistic will gut anti-discrimination laws…the slippery slope that frosty fell down. I predict this won’t happen. Phillips contends that he is compelled to participate in a celebration. Decorating and delivering a cake is not participating or else the people delivering tables to the hall would be participating and down the slope we go. Again unworkable as legal doctrine. Wedding singer, videographer, officiant, sketch artists….all participate. Cake baker…chef…not fundamental expressive mediums….and not active participants.

    AJ_Liberty (ec7f74)

  171. Interview onn NPR with woman in Afghanistan. She could tellll stories, Just yesterday an 11-year old was taken by the Taliban. When parents asked why they said they need him to blow up a checkpoint. And this is not aCivil War. There are people from Pakistan and from Iran fighting with the Taliban.

    A border post with Iran was also seized – Afghan soldiers retreated into Iran.

    ————————–

    This is like France in 1940, Mainland China in 1948-9, South Vietnam 1975 – and the Taliban actually need to slow down. They’re closing off all the escape routes first. I don’t think Pakistan will allow refugees this time – besides they would have to go through Taliban controlled territory.

    Sammy Finkelman (51cd0c)

  172. People are claiming that the PRC may actually try to annex the moon or Mars….

    Claiming annexation is one thing. Enforcing it is another.

    Rip Murdock (d2a2a8)

  173. China hasn’t even actually said that.

    This idea looks like it is being promoted by people who want to get the U.S. government back into space.

    Sammy Finkelman (51cd0c)

  174. What’s coming more out of China is the idea rhat if they don’t establish themselves in space, somebody else will stop them later. So someone feels compelled to argue it is useful

    Sammy Finkelman (51cd0c)

  175. Claiming annexation is one thing. Enforcing it is another.

    C’mon, man… look… with Biden “in charge”, they are feeling frisky.

    Besides… for all anyone knows, Hunter may’ve sold them the rights…

    Colonel Haiku (2601c0)

  176. https://www.dailysignal.com/2021/07/08/i-could-lose-everything-after-devastating-end-to-8-year-court-battle-over-same-sex-wedding-florist-says/

    Another example of the Supreme Court’s cowardice as they allow the government to violate a citizen’s civil rights and ruin her personally and financially as a terror lesson to others.

    NJRob (fbe422)

  177. Colonel,

    China bought American mines from the corrupt Clinton administration so there’s no reason not to think the Biden administration played the same game at America’s expense.

    NJRob (fbe422)

  178. Not entirely on topic, but of some interest to most, I think:

    Where do people live especially long and healthy lives? In Okinawa:

    Five times as many Okinawans reach 100 years old compared to the rest of Japan. The Okinawan diet consist of low-fat, low-salt foods, such as whole fruits and vegetables, legumes, tofu, and seaweed. Okinawans are known for their longevity. This particular island is a so-called Blue Zone, an area where the people live longer than most others elsewhere in the world.[28] As of 2002 there were 34.7 centenarians for every 100,000 inhabitants, which is the highest ratio worldwide.[29]:131–132 Possible explanations are diet, low-stress lifestyle, caring community, activity, and spirituality of the inhabitants of the island

    I thought most educated people knew that, but may be wrong.

    If, as the Trump organization claimed, their testing and vitamin supplements were “essential” to good health, then the Okinawans must have been buying them for decades — even before they were for sale.

    That would be possible if the Okinawans had time travel, but I think it more likely that Trump ignored these well-known facts, in order to make the claim that his products were “essential”.

    And I think it fair to conclude that his motive was the same with the supplements, as with the lawsuits against Facebook and Twitter: Trump wants to get money from suckers, and will deceive them to do it.

    Jim Miller (edcec1)

  179. #160: Kevin M. – If you do simple searches, you’ll find that both Bezos and Musk have said that they were inspired by Heinlein’s novel, The Man Who Sold the Moon. (Confusingly, it precedes “Requiem”, but was written years later.)

    Jim Miller (edcec1)

  180. Colonel Haiku (2601c0) — 7/8/2021 @ 1:42 pm

    HA! Good one Colonel!

    NJRob (fbe422) — 7/8/2021 @ 1:46 pm

    Oh, he knows, NJRob, he knows.

    We will have to wait 50 years before historians can feel free to write about, just how afraid of Trump other countries were and, how Trump’s unpredictability proved to be a temporary abatis to their plans.

    Historians will cite the Obama and Biden admins as a contrast.

    felipe (484255)

  181. So, is your hypothetical the same as a cake baker or a gourmet chef for that matter? Does any activity that is artistic or creative qualify as 1A speech? Hair stylist or dress maker? What about a sandwich artist or a landscaper?

    They would potentially all qualify, yes, as far as I’m concerned…within the limits already stated. There is a difference between a pre-set menu plate and a special creation, or between mowing the lawn and trimming a topiary. I admit that I may not be able to articulate where all the lines should go. But then, I’m not the one straw-manning the philosophy in question. “Blessing the event”…that’s beneath you.

    Cake decorating in my view is much closer to a gourmet chef. Presentation is a part of the experience but ultimately the cake is functional….you eat it.

    On this view, only fine arts are inarguably worthy of any sort of conscience protection. A glazed clay pot with designs may be beautiful, but ultimately, it’s a pot. You put stuff in it. So what if I’m a Jewish potter who doesn’t want to put swastikas on my pot? A column in an archway may be exquisitely designed, but ultimately, it’s just a column. It holds up the roof. So what if I’m a Christian builder who doesn’t want to put naked ladies (no matter how “aesthetic” they may be) on a capital mold?

    Oh, yes, these examples are more permanent than food. But you didn’t say anything about permanence. Your argument rested on the contention that cakes and meals were more essentially functional than aesthetic. So are pots and columns.

    The cake may be aesthetically beautiful like a well manicured lawn…but it does not convey anything substantive about the celebration.

    I’m afraid that argument cuts both ways. If the cake “does not convey anything substantive,” then any cake or cake-substitute (brownies, for example) should do. Phillips offered the couple, and the attorney, other items — items they could have had right then, that they could have walked out of the shop with. They refused. So clearly, they see it differently than you do.

    Phillips contends that he is compelled to participate in a celebration. Decorating and delivering a cake is not participating…

    He is being told he must use his talents and his experience to make something which conveys a message that he thinks is a lie and a sin. He does not believe the message. So he does not want to make the thing. Compelling him to make the thing and communicate the message anyway is a type of participation, whether you think so or not.

    Calling everything with an ounce of creative input artistic will gut anti-discrimination laws…the slippery slope that frosty fell down.

    As I said earlier, I cannot provide a point-by-point exposition on where lines should be drawn between 1) a craft that is merely an example of commercial activity and 2) a craft that contains enough aesthetic and expressive power to rise to the level of an artistic activity worthy of First Amendment protection. I am not an expert on every human endeavor, and it would be futile to pretend that I am. But I would rather draw lines that included things which shouldn’t be protected than draw lines which excluded things that should. Which seems like a very odd point to have to make, when I’m talking to someone with the word “Liberty” in their handle.

    Demosthenes (8d845f)

  182. Hmmm. Obama and Biden as historical parenthesis around Trump! This is a free idea for future historians of any political stripe.

    felipe (484255)

  183. @172. Nobody will stop them. And, of course, even the hardware – operational and abandoned- remains property of the governments which lofted it. The abandoned elements of the Apollo lunar landings- from the crashed ascent stages and booster stages to the dumped backpacks, cameras, instruments, flags, rovers, tools, a falcon feather, a couple of golf balls and the white ‘jett bags’ full of trash– and astro-poop– beneath the lunar module descent stages all remain property of the U.S. government:

    https://www.news-journalonline.com/news/20190708/moon-graveyard-of-apollo-astronaut-trash-heres-what-well-find-when-we-return

    DCSCA (f4c5e5)

  184. Demosthenes (8d845f) — 7/8/2021 @ 2:51 pm

    You make very sharp points, Demosthenes. What a pleasure to read your comment, thank you.

    felipe (484255)

  185. Time123 (eb65d0) — 7/8/2021 @ 5:28 am

    Frosty, did you see my comment with the link to Muslim taxi drivers that refused to transport dogs or alcohol? Wonder what your thoughts on that are.

    I did but taxis and limo services aren’t exactly the same. Both can be considered livery services but there are some differences. I don’t know the details of the Muslim taxi case. But in some places, taxis are a medallion service. In those places, the taxis are operating under a limited monopoly granted by the city. In NY, for example, they are also called a Certificate of Public Necessity and Convenience. That makes them essentially public services.

    This is a bit different from a limo service. It’s also different from this bakery situation.

    frosty (f27e97)

  186. AJ_Liberty (ec7f74) — 7/8/2021 @ 12:53 pm

    Calling everything with an ounce of creative input artistic will gut anti-discrimination laws…the slippery slope that frosty fell down.

    It’s not a slippery slope. I’m just unwilling to compel behavior and speech in the name of anti-discrimination. The 1st amendment grants individuals a right to free speech. That means they can say or not say things you don’t like. If anti-discrimination laws give the state the ability to compel speech then they should be gutted.

    Again unworkable as legal doctrine. Wedding singer, videographer, officiant, sketch artists….all participate. Cake baker…chef…not fundamental expressive mediums….and not active participants.

    I’d wager the people putting on the wedding would disagree. Can you find a bride who would say, “I don’t really care at all about the cake”? Maybe on her 2nd or 3rd wedding but it’s a rare 1st bride who’s going to say that. And the plaintiff in this case certainly didn’t say that.

    You’re getting off in the weeds with this participation and fundamental expressive mediums verbiage. The nature and scope of art isn’t the issue. The issue is the nature and scope of speech, association, and religion within a 1st amendment context. It’s a workable doctrine. It just doesn’t work as you want.

    frosty (f27e97)

  187. AJ_Liberty (ec7f74) — 7/8/2021 @ 12:53 pm

    Calling everything with an ounce of creative input artistic will gut anti-discrimination laws…the slippery slope that frosty fell down.

    I think this is close to the law right now. You can’t compel speech, and there are rules around speech/not-speech

    Time123 (9f42ee)

  188. Just for fun, go over to the other side and listen to Kevin Drum on what’s wrong with Democrats and why they are setting themselves up to lose:

    If you hate the culture wars, blame liberals

    And then consider: he is analyzing this in the era of Trump. If Trump stands down and lets someone else carry his flag forward in a saner direction, all of it is worse.

    Kevin M (ab1c11)

  189. Both Bezos and Musk have said that they were inspired by Heinlein’s novel, The Man Who Sold the Moon.

    TMWStM is a novella, part of a collection of early Heinlein stories with the same name (and which includes “Requiem”). It’s the first part of his “Future History.” Also found in The Past Through Tomorrow.

    Kevin M (ab1c11)

  190. ANd yes, I know that Musk, for one, has referred to himself as Harriman. Also Draco.

    Kevin M (ab1c11)

  191. People are claiming that the PRC may actually try to annex the moon or Mars….

    That could lead to conflict.

    Kevin M (ab1c11)

  192. The ‘culture wars’ are conservative creation because their ideas kept failing w/t public.

    And, of course, there’s no difference between Trump and Musk when it comes to scamming and showmanship.

    DCSCA (f4c5e5)

  193. @191. The same ‘people’ who forgot about Vietnam, overlooked the Soviet, British, Alenander & Kahn experience and blundered into Afghanitan

    Mars is a head fake. Sucker bait.

    ‘Red Moon.’

    Been there; done that.

    DCSCA (f4c5e5)

  194. The ‘culture wars’ are conservative creation because their ideas kept failing w/t public.

    Wrong, as usual. The changes are all being drivin by an increasingly left Deomcrat Party. Even Kevin Drum admits that the Democrats have moved MUCH farther left in the last 25 years than the GOP as moved right, even with Trump. There’s not much distance between GHWB and Romney — or even Trump, policy-wise — but the gap between Bill Clinton and AOC is immense.

    The Woke are ripping everything up and “cancelling” all who get in their way. Moderates are increasingly worried about having to choose between Donald Trump or the “Progressive” Left Given them a choice that isn’t exactly “Donald Trump” and they’ll vote R in a heartbeat. Even Democrat strongholds are rejecting the Wokists. NYC mayor, or one. There would be no CA recall if it weren’t for a backlash.

    Trump GAINED 8% among Hispanics in 2020. He gained among blacks. Even with his terrible, no good and crude behavior he almost won re-election. Imaginr if the GOP picked someone who knew what the F they were doing.

    Kevin M (ab1c11)

  195. Michael Avenatti Sentenced to 2 1/2 Years for Trying to Extort Nike – source, WSJ.com

    Another lawyer goes to the pokie.

    And how many media outlets slobbered over this fella?!

    Trump luck is in the air. Buy that lottery ticket, kids.

    DCSCA (f4c5e5)

  196. Mars is a head fake. Sucker bait.

    Sadly, I cannot disagree with this. Moon first. Moon for 100 years first. And yes, “Red Moon” — Kim Stanley Robinson (2018).

    Kevin M (ab1c11)

  197. @194. Except it’s not. See The Big Dick and Paddy Buchanan for details.

    Keep trying, Kevin.

    DCSCA (f4c5e5)

  198. Culture Wars: Dan Quayle vs. ‘Murphy Brown.’ =mike-drop=

    ROFLMAOPIP

    Film at 11.

    DCSCA (f4c5e5)

  199. Kevin M,

    Did you read the comments to him? They aren’t happy and want more radicalism and want it now. He says he wants it too, but the pace is too fast.

    NJRob (37860d)

  200. “They would potentially all qualify, yes, as far as I’m concerned….I cannot provide a point-by-point exposition on where lines should be drawn”

    But this is not a question of taste…..especially as you are unwilling (unable?) to draw lines to create actual judicially-enforceable law. Judges must fashion categories and tests that lower courts can administer, that provide some stability to the law, and don’t create unwanted logic traps.

    As of this point in your reasoning, products or service provided by hair dressers, dress designers, florists, jewelers, interior decorators, chefs, bartenders, landscapers, candlestick makers, and bakers may all qualify as “artists” who can opt out of serving the general public by saying that there product or service is actually speech….and that that speech cannot be compelled. You may be content with this as it pertains to sexual orientation, but how exactly does it work with regards to anti-discrimination targeting race and religion, as the Colorado Statute does? Your logic that the cake is speech endorsing an event means that if Phillips has problems with Jews, Muslims, or Mormons….and does not wish to “endorse” their events and heretical views….then he is free to discriminate….as is the limo driver, honeymoon planner, etc. If everyone is an “artist”, doesn’t that open the door for white supremacists to claim their products are speech and choose not to serve blacks. You can’t mean for that to happen, do you? But what in your argument prevents it?

    So let’s consider workable lines. Certainly requiring Phillips to put words or imagery on a cake compels speech….that’s unambiguous and uncontested. No one quibbles with this. But is a blue cake or a wedding cake itself speech? It can undeniably be prominent at a wedding or party but is it speech in terms of the 1A. Thus far unlike songs, paintings, and poems it is not currently recognized by the Court in that way. There’s no direct precedent or close category of precedent. But that’s not dispositive. You may say that the wedding cake announces “there’s been a wedding, let’s celebrate!” But is it really Phillips’ speech? Do guests attend a reception to hear from the baker…or the caterer….or the florist….and do they even know who these people are….and can they look at a three-tier cake and deduce “endorsement”? Any message is pretty clearly conveyed by the party host. The cake…if there is any question…is there because Colorado law demands equal treatment.

    I only brought up participation because it’s another way for a Court to concretely assess the burden placed on the actor. Is the actor required to attend and participate in the questioned event? Like a wedding singer, videographer, or planner. It would seem that they would have a less attenuated argument than Phillips who is not required to attend. Further, Phillips has not lost his 1A rights to speak out against same-sex marriage and the anti-discrimination law…he can even post signs in his shop if he fears that his other customers will think he has caved and is now complicit. Phillips is only following the law.

    “that’s beneath you”….never ever assume that

    AJ_Liberty (a4ff25)

  201. So, was this cake pink on the inside and blue on the outside, or blue on the inside and pink on the outside?

    Because for a male to female transsexual it makes a difference. Pink on the inside and blue on the outside symbolizes the condition they claim — a female trapped with the outward appearance of a male. Blue on the inside and pink on the outside symbolizes a male playing dress-up with female accoutrements.

    Honestly, if it were the second type — blue on the inside and pink on the outside — I don’t see the religion objection. It would reflect the reality. Unless, maybe, the baker thought it uncharitable to let even such a nasty troll play his own practical joke on himself?

    nk (1d9030)

  202. Aj,

    You don’t even need to get that deep. The antagonists are telling Mr. Phillips as to the purpose of the cake. That shows they expect him to participate in their event. That’s all that matters.

    NJRob (eb56c3)

  203. …especially as you are unwilling (unable?) to draw lines to create actual judicially-enforceable law.

    Unable. The economy, and all the various professions within it, are vastly complex. I do not pretend to the expertise necessary to determine, field by field and service by service, what might qualify as worthy of First Amendment protection.

    Judges must fashion categories and tests…

    MUST they? Because I don’t think they have the necessary expertise, either.

    As of this point in your reasoning, products or service provided by hair dressers, dress designers, florists, jewelers, interior decorators, chefs, bartenders, landscapers, candlestick makers, and bakers may all qualify as “artists” who can opt out of serving the general public by saying that there product or service is actually speech….and that that speech cannot be compelled.

    This is an oversimplification of what I have been saying, since literally my first hypothetical, in two very important respects. It makes me think you don’t really understand what I have said, because now we’re getting lost in the weeds of what can, or cannot, constitute “art” and “protected expression” and so on.

    Point 1: If you had said “CUSTOM products or services,” that would have been closer to what I’ve been saying. Going back to Phillips, he offers a wide selection of already-made wares that people can purchase. Had the gay couple, or the attorney, walked in and asked to purchase one of those — and he had turned them down — then I would not be on his side. Instead, as I said, he offered those things to the couple and the attorney, and they rejected them. So he clearly wasn’t trying to “opt out” of serving anyone.

    Point 2: People who offer CUSTOM services to the public should be free to turn down any CUSTOM request, for any reason or for none at all. (I swear, I’ve used pretty much that exact same phrase at least twice now). When you ask me to go above and beyond a job that I would do for anybody, to do a specific job for you, then I think it’s questionable (at the very least) whether public accommodation laws should even apply. But that might be a debate for another time.

    Instead, let’s dispense with the hypotheticals for a moment, and look at the actual cases. I don’t for one minute think that Jack Phillips turned down the gay couple’s request for a custom cake because he has a problem doing business with gay people. If he did, he wouldn’t have then offered to sell them something else. Nor do I think Barronelle Stutzman, so recently mistreated by our “justice“ system, turned down a gay customer’s request for a wedding floral arrangement based on his sexuality, since she had been selling him flowers for a decade. Instead, their refusal was narrowly tailored, specifically because they did not want to have anything to do with a CHOICE that their prospective customers were making.

    Can they be criticized for that? Of course. This is still (nominally) a free country. But they should not have their lives ruined for it. They proved themselves willing to do business with the people who sued them, in all but one specific area. A country that believes in freedom of speech and freedom of religion should be able to accommodate that small carveout of space, in a privately-owned business, for the expression of individual conscience.

    Further, Phillips has not lost his 1A rights to speak out against same-sex marriage and the anti-discrimination law…he can even post signs in his shop if he fears that his other customers will think he has caved and is now complicit.

    In other words, Phillips has the right to any religious beliefs he wants. He’s just not free to act on them. This is the “just go to your little temple and shake your rattle in private” philosophy of religious freedom, and it is flatly un-American. My right to believe in the tenets of my religion, and to act on them, does not end where the public square begins. That will, inevitably, lead to clashes between people of different faiths, as well as between theists and atheists and agnostics. But that’s the price for living in a pluralist society.

    If we meet as two private citizens in the public square, then I am not allowed to force you to abide by my religious beliefs. But you are not allowed to force me to abide by yours, either. And to the extent anti-discrimination law conflicts with that relationship, then anti-discrimination law is unconstitutional. The First Amendment does not merely stop the government from establishing a church. It stops them from barring me exercising my faith as I see fit. That includes the government of Colorado, unless I am much mistaken on incorporation doctrine.

    On a side note, we have already seen at least one municipality (NYC) pass laws making it a violation to misgender someone. (Which is Orwell-speak for properly gendering someone who doesn’t want to be properly gendered.) That is also clearly unconstitutional. But if it is allowed to stand, I wonder whether — in a few years — Colorado might not be able to pass a law forbidding Phillips from displaying signs such as you suggest, perhaps because of the “hostility” it would signal toward the LGBT community. Why not? Once you establish that laws passed by Congress can override the clearly-written constitutional protection of our natural right to freedom of religion, it is not that big a step to say that laws passed by an individual state/municipality (or even regulations laid down by a lawfully-constituted regulatory agency) can override the similar protection of our freedom of speech.

    That’s the slippery slope I don’t think you can avoid. And if that’s the alternative, I would rather go down the path where a limo driver is trying to make the frankly ludicrous claim that he can refuse service to black people because his driving constitutes “artistry.” That, I know will get laughed out of the courts. Speech restrictions, in our increasingly self-centered, perpetually offended, and litigious society…I don’t know that those will.

    If everyone is an “artist”, doesn’t that open the door for white supremacists to claim their products are speech and choose not to serve blacks.

    In one sense, this is a moot point. Any business owner who is a real bigot (instead of a person of conscience, like Phillips and Stutzman) can already find ways to dodge anti-discrimination law. “Sorry, Miss Goldfarb, I can’t bake you a cake for your wedding to Mr. Lowenstein. I’m all booked up that week.” “Gosh, you ladies seem like a nice couple. What a shame I can’t take on your house remodel. It’s just too big a job for my company.” Only a dedicated investigation will be able to discern an honest one-time refusal from a pattern of discrimination. The current setup penalizes, not bigotry per se, but stupid bigotry — which would be fine, except that it tramples on legitimate conscience objections into the bargain.

    In a broader sense…oh, PLEASE. This isn’t even 1951, much less 1851. Yelp exists. Social media exists. Any business owner who decided to openly advertise “We don’t serve blacks [whites, Hispanics, Asians, Jews, Muslims, Christians, gays, straights] would face a barrage of negative publicity, review-bombing, boycotts and threats to boycott, protests, and possibly violence. Heck, any business owner ACCUSED of discrimination will face at least some of that blowback. I think the true bigots should feel free to advertise themselves openly. It’ll certainly let me know where not to shop.

    Speaking of it not being 1851 anymore, the vast majority of Americans live in areas where competitive services exist. If Smith’s General Store won’t serve you because your skin is mocha instead of peach, you just go down the street to Wal-Mart, where the only color they care about is green — and the prices are probably cheaper, anyway. And if this last year has taught us anything, it’s that corporations will fall all over themselves to virtue-signal if they think they can make a buck. This was even happening a few years ago, when KFC responded to the Chick-Fil-A dustup by saying “Our chicken is breaded with love, not hate.” So let’s not pretend that Masterpiece Cakeshop was the only game in town. (Much less, contra Marie Antoinette, that cake is a necessity which public accommodation laws must protect your right to get in order to live.)

    Now, I admit that I find the notion of what would constitute a hairstyle so special that it would be worthy of First Amendment protection a little baffling. But I’d rather live in a world where someone denied me service because I was a straight white male, if the alternative is living in a world where someone could “lawfare” me into either submission or oblivion with the full approval of the legal system. You may not want that last world, either. But it’s the one you’re arguing for, Mr. Liberty.

    And with that, I bid you adieu. This conversation has been diverting, but I’ve been putting off necessary work for it.

    Demosthenes (8d845f)

  204. Akshually, most anti-discrimination laws also prohibit signage or other speech or conduct that hint that the business owner does not really like X and is only complying with the law by deigning to take the patron’s money.

    nk (1d9030)

  205. Ah. I didn’t know that. So my hypothetical is already actual.

    Thank you, nk. That just bolsters my point.

    Demosthenes (8d845f)

  206. AJ_Liberty (a4ff25) — 7/9/2021 @ 6:41 am

    If everyone is an “artist”, doesn’t that open the door for white supremacists to claim their products are speech and choose not to serve blacks. You can’t mean for that to happen, do you? But what in your argument prevents it?

    Ah, there’s the bogeyman again. Those sneaky white supremacists making their claims about free speech. F them and their rights, am I right? This little gem undermines your entire argument. And it’s dishonest.

    Nothing in the argument prevents it. But that isn’t the same as “meaning” for it to happen. When people are free to make their own choices you aren’t going to agree with some of them. The alternative that you’re advocating is to compel them to behave acceptably.

    So, let’s see, we’ve got ad hominem or is that begging the question? It looks like there’s a false dichotomy in there. Maybe an ad populum hidden away too. You’ve dug yourself an impressive hole trying to get around the 1st amendment.

    I’m guessing you haven’t noticed some of the similarities between your arguments and those used to defend Jim Crow laws.

    frosty (f27e97)

  207. AJ_Liberty (a4ff25) — 7/9/2021 @ 6:41 am

    Btw;

    Further, Phillips has not lost his 1A rights to speak out against same-sex marriage and the anti-discrimination law…he can even post signs in his shop if he fears that his other customers will think he has caved and is now complicit. Phillips is only following the law.

    are you advocating hate speech? Because that’s what those signs would be right?

    “that’s beneath you”….never ever assume that

    Don’t worry. I think you’ve fixed that problem.

    frosty (f27e97)

  208. As of this point in your reasoning, products or service provided by hair dressers, dress designers, florists, jewelers, interior decorators, chefs, bartenders, landscapers, candlestick makers, and bakers may all qualify as “artists” who can opt out of serving the general public by saying that there product or service is actually speech….and that that speech cannot be compelled.

    Yes, they have the rights to make that claim and the courts have to sort out pretext from legitimate claims. That’s their job and see no evidence they’re so bad at it we have to compel all speech. Courts actually seem pretty good at this. They have to do it all the time wrt to “reasonable accommodation”

    The artist/cake guy that doesn’t like gays/interracial/interfaith/whatever weddings is free to decline to to make art to commemorate the event. If they have a store that sells things they’re not free to deny service on the basis of belonging to a protected class, but can deny service on other basis. We also have a right to judge them for their moral choices. Just as we have the right to judge the plaintiffs that are suing this guy.

    We have lots of rights, it’s what makes America cool.

    Time123 (9f42ee)

  209. Baking a cake is not participating in the event. It is baking a cake.

    Rip Murdock (d2a2a8)

  210. RIP, If the cake is an act of expression i’s also speech and can’t be compelled.

    Time123 (9f42ee)

  211. @209 if that’s how you view the effort, then go to ralph’s or vons, pick out a ready made off the shelf cake, pay for it, and walk out

    i assure you, no one will put up a fuss

    JF (e1156d)

  212. Just to bring this back to the OP

    Because we have the right not be compelled to make statements we don’t want to, regardless of why we don’t want to make them, the government can’t force FaceTwitter to help us make statements. Just like the cake guy shouldn’t be compelled to make speech. Also just like the cake guy people can file legal claims to try and force them. Hopefully the courts will continue to uphold everyone’s right to free speech.

    Also, please note that Section 230 doesn’t feature into this analysis at all.

    Time123 (9f42ee)

  213. @212 section 230 does feature into this because absent that fb probably doesn’t exist, certainly not as it is

    JF (e1156d)

  214. Baking a cake is not participating in the event. It is baking a cake.

    I think Jack Phillips would agree with you. Which is why he offered to sell pre-made cakes to the people who then sued him. Had he subscribed to your straw-man reasoning, he probably wouldn’t have done that.

    Oh, and you don’t get to define Jack Phillips’s religion for Jack Phillips.

    Demosthenes (8d845f)

  215. Because we have the right not be compelled to make statements we don’t want to, regardless of why we don’t want to make them, the government can’t force FaceTwitter to help us make statements.

    Time123 (9f42ee) — 7/9/2021 @ 11:13 am

    This is correct.

    Demosthenes (8d845f)

  216. And now I really have to go.

    Demosthenes (8d845f)

  217. @216, glad you commented. I enjoyed your stuff.

    Time123 (9f42ee)

  218. Time123 (9f42ee) — 7/9/2021 @ 11:13 am

    You’re jumping over several steps.

    I’m not alleging that the baker is being forced to participate in the gay man’s speech. This entire participation argument is flawed. The baker is being compelled to speak on his own. He is being told, “here is a message, articulate that message in a medium”.

    This not what Twitter and Facebook are being accused of doing. T/F are much closer to the imagined case of the baker saying you can’t have any of my products. They do more than delete specific messages. They ban all future communication on any topic from a person if they’ve shown evidence of “unacceptable” ideas. They are also closer to the taxi drivers than the limo drivers. They are not providing any sort of customized messaging. They are routinely referred to as a platform and the formulation is generally “they can’t be forced to provide their platform …”.

    There is also the issue of corporations not being people. Corporations do not have the same rights as individuals. We have decided that some of the legal rights applied to people can be applied to corporations but they are by definition products of the legal system. This is why you can have something like affirmative action to influence hiring practices but you can’t have some sort of affirmative action for individual associations. This is also another example, among many, of why “muh private property rights + corporations” doesn’t make sense. Not only is it not legal it’s not practical.

    You can argue that the people at T/F have a right to not be compelled to speak but now you’re getting close to a valid version of AJ_Liberty’s argument. They aren’t being compelled to speak. They are in effect saying “you can’t eat any of my chocolate chip cookies after you’ve said things I don’t like”. They’ve already created everything needed for people to post messages. They are just policing its use, exactly as AJ_Liberty complained about with the baker, after the fact.

    You can argue the issue of protected classes. Fair enough. I don’t see that as an essential element of either issue.

    You can argue that T/F aren’t essential services but there are still differences between the two cases and you can’t directly analogize them like this. It also doesn’t help that section 230 exists to protect things like T/F because they were deemed important. Important isn’t the same as essential but that further undermines the comparison.

    This isn’t the same as the baker.

    frosty (f27e97)

  219. “Instead, as I said, he offered those things to the couple and the attorney, and they rejected them”

    Why I’ve ignored it (twice) is that it’s factually inaccurate that an attorney was present when Craig & Mullins made the inquiry into getting a wedding cake, so it’s at best misleading. And offering “other baked goods” in place of a wedding cake was probably seen as insulting at the time. I don’t think the couple appreciated being told in effect “your quest for civil marriage and all the rights it bestows morally offends me deeply, but hey, how about some muffins instead!”

    “CUSTOM….CUSTOM….CUSTOM”

    If everyone but certain customers get to order from the custom menu, it doesn’t solve the discrimination problem. Phillips had a catalog of past custom wedding cakes…none of those were an option. He can’t have a limited menu for customers that are specifically protected by law from having to order from a limited menu.

    “He’s just not free to act on them”

    Yikes, acting out your faith should not curtail someone else’s civil rights. If the law is to not discriminate, then how about follow the law? Phillips did not have to have a gay marriage or participate in a gay marriage or attend a gay reception. All he had to do was provide a good…just as he does to customers who have been divorced or don’t share his religious views. I’m guessing he is smart enough to understand the potential consequences of his chosen action.

    “And to the extent anti-discrimination law conflicts with that relationship, then anti-discrimination law is unconstitutional”

    So now we’ve abandoned reality….and lurched into how it ought to be. There’s nothing unconstitutional about the Colorado Law.

    “let’s not pretend that Masterpiece Cakeshop was the only game in town”

    Same losing argument that was made in the south in the ’60’s. Neutrally applied anti-discrimination laws…like the one in Colorado….are perfectly constitutional. Public accommodations are not just hotels.

    “a hairstyle so special that it would be worthy of First Amendment protection a little baffling”

    But this is the implication of YOUR argument….you are saying that Phillips “participates and endorses” a celebration by virtue of his product/service…..and that his artistic work is protected speech that can’t be compelled. Why is it suddenly shocking that another purported “artist” would make a similar claim….and why under your legal theory would the Court recognize the baker’s claim and not the stylist’s? You don’t explain.

    “Which seems like a very odd point to have to make to someone with the word “Liberty” in their handle”

    Final yikes, so the ability to enter a shop and not be compelled to order from a limited menu is NOT a liberty concern….well I guess not for you or me, right?

    AJ_Liberty (ec7f74)

  220. Frosty,

    There is also the issue of corporations not being people. Corporations do not have the same rights as individuals

    From Wiki they do have free speech rights. Given that, this seems pretty close to the Baker. If the baker is free not to speak so are Social media. On the subject of banning people going forward that seems more analogous to telling a disruptive customer not to come back any more.

    https://en.wikipedia.org/wiki/Corporate_personhood

    The corporate personhood aspect of the campaign finance debate turns on Buckley v. Valeo (1976) and Citizens United v. Federal Election Commission (2010): Buckley ruled that political spending is protected by the First Amendment right to free speech,[23] while Citizens United ruled that corporate political spending is protected, holding that corporations have a First Amendment right to free speech because they are “associations of citizens” and hold the collected rights of the individual citizens who constitute them.[24]

    Time123 (9f42ee)

  221. AJ, your analysis is overly complicated, compelling speech is a violation of the first amendment. Selling goods in stock is not speech. Making custom art is. Your reasons for not speaking aren’t relevant to your rights.

    Time123 (9f42ee)

  222. Time: “Selling goods in stock is not speech. Making custom art is. Your reasons for not speaking aren’t relevant to your rights.”

    So a gourmet chef serving a couple at his restaurant…..where every dinner is a custom artistically-pleasing experience….is free to deny service if the couple is gay, black, or Muslim…because he cannot be compelled to serve a custom meal? Because that’s what I just read. Why would “cake” change the analysis?

    AJ_Liberty (ec7f74)

  223. Congrats AJ, You’ve found a specific case where the answer isn’t clear. I would have gone with “what if you buy a cake off the shelf and ask them to touch up a decoration that was smudged by the box?” But yours is good also.

    My answer is “Maybe”. I’m sure the court would have to look at other facts of the situation to understand of the chef’s objection was truly founded in free speech principles or of that was just a pretext to deny service based on race. I can suggest additional facts that would go either way. This is why we have courts, so that the details of close calls can be examined by a neutral party based on established rules. The key question is if we’re legitimately discussing speech.

    Time123 (9f42ee)

  224. I think Jack Phillips would agree with you. Which is why he offered to sell pre-made cakes to the people who then sued him.

    Philips was willing to sell the customers in the current case a custom cake exactly as they requested, up until the point the customer explained what the colors meant to them. That’s when he object to their feelings.

    Rip Murdock (d2a2a8)

  225. @220-
    Corporations also have the right to sue and be sued, which would disappear if they were not “persons.” A legal case exists between persons, not a person and a nonentity. Corporations have the right to contract, which would be denied if they were not “persons” in the eyes of the law. As you noted, corporations have the right of free speech.

    If they are not “persons,” would the First Amendment apply to The New York Times, the Catholic Church, or Breitbart-no. Speech could be cancelled or coerced.
    Would they have Fourth Amendment rights-no.
    Fifth Amendment rights related to just compensation-no.

    If corporations weren’t “persons” then the government would be able to seize Masterpiece Bakers and their would be nothing they could do about it. But as “persons” they have the right to go to the courts and vindicate their rights.

    Here is a defense of corporate personhood.

    Rip Murdock (d2a2a8)

  226. Knew I shouldn’t have checked in.

    Since I did, though, I feel I must respond to three points. As for the rest, it’s pretty clear we won’t see eye to eye (which makes me unironically grateful to God that you aren’t in charge of determining First Amendment boundaries), and any further conversation would basically involve us continuing to throw slightly reworded and more elaborate versions of the same comments at each other.

    Point 1:

    Why I’ve ignored it (twice) is that it’s factually inaccurate that an attorney was present when Craig & Mullins made the inquiry into getting a wedding cake, so it’s at best misleading.

    You seem to be confused about what I was saying. “The couple and the attorney” refer to two separate incidents, both of which have gotten Phillips sued. “The couple“ refers to Craig and Mullins. “The attorney“ refers to Scardino. Although they were separate cases, since they cover the same essential ground, I thought I would mention them together. Perhaps I should have made that clearer.

    Point #2:

    Yikes, acting out your faith should not curtail someone else’s civil rights. If the law is to not discriminate, then how about follow the law?

    While I find the implication that ordering a custom cake somehow qualifies as a “civil right” humorous in the extreme, I do understand your point. However, I must remind you at this point that the First Amendment also qualifies as “the law,” and a rather higher one than anything Congress has passed. If Phillips sees the act of creating a custom wedding cake as having a religious component — and everything I have seen convinces me that is the case — then why don’t you and yours “follow the law,” and let him follow his faith?

    Oh, right. Because their right to order a non-substantive functional custom dessert object is more important. Must have missed the “right to confections” clause the last time I read the Constitution. Or in your words, “Yikes.”

    Point #3:

    Final yikes, so the ability to enter a shop and not be compelled to order from a limited menu is NOT a liberty concern…

    Actually, I think this is also more my “yikes” than yours. It’s pretty clear you have no idea what the word “liberty” means in a traditional American context. We have historically used that word to describe the ability to do as one will, free of government coercion. Your use of the word requires government coercion, using the power of the state to force one private citizen to bend to another private citizen’s will on a matter of conscience.

    I don’t know what you’re talking about, but it’s not “liberty.“

    And it’s not American.

    Demosthenes (8d845f)

  227. Philips was willing to sell the customers in the current case a custom cake exactly as they requested, up until the point the customer explained what the colors meant to them.

    And why did the customer do that, I wonder? Perhaps because the customer knew what that declaration would mean to Phillips?

    Under current US law, Scardina [misspelled in previous post, sorry] has the right to say he is a woman. He has the right, as a presumably competent adult, to hire a team of medical experts to mutilate his body so that it will look more like a woman’s. And of course, he has the right to hold a party to celebrate the mutilation.

    But he does not have the right to compel others to knowingly assist in the celebration against their will.

    If this were really just about the cake, Scardina would have kept his mouth shut about his purpose, ordered the cake, received it, and then had a big laugh about putting one over on the bigoted Christian baker. But that’s not what Scardina was after. Scardina wanted Phillips to KNOW. Because then, Phillips would either have to submit (against his sincere religious convictions) to Scardina’s request, or open himself up for further litigation and possible ruin.

    As far as I’m concerned, Scardina is the bigot here, not Phillips.

    Demosthenes (8d845f)

  228. “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”

    NJRob (f2bd3b)

  229. @228 that’s one POV, but which religion? Yours? Mine? Omar’s? Romeny’s? Biden’s?

    Everyone that says we’re a nation of God always seems to assume there’s agreement on what God wants, or that their creed is the only one that should be given preference.

    Time123 (9f42ee)

  230. And why did the customer do that, I wonder? Perhaps because the customer knew what that declaration would mean to Phillips?

    Seems very likely to me that they’re looking for the line where commence and speech meet.

    Time123 (9f42ee)

  231. Time @223, I agree with you, if the rationale for the denial is the same as one that would apply to everyone else, there’s no problem. If the denial is based on something specific to a protected class, then it won’t. But it likely has less to do with the actual speech. Meaning, if instead of a chef, the example was a poet, then the poet has much more protection because creating poetry is quintessential speech. With cakes, the context provides a lot of the meaning….and that meaning is shared by the host and guests….not by the baker who generally is not there. Contrast that with a reading of a poem….which is not context limited….as the quality and emotion of poem can stand on its own.

    The Supreme Court tends to like to highlight principles by defining balancing tests when competing interests are at play. I think that Demosthenes is wrong that free exercise of religion will be the key. The history of religious claims against laws of general applicability don’t suggest this (RFRA seems like a more likely vehicle vs the 1A). It will more likely rise or fall on the speech claim, which again, based on my read of 1A scholar opinions, would be a close call. Interestingly there are libertarian law professors on both sides of the issue…..which is a bit unusual. I’m curious how Eugene Volokh would respond to Demosthenes’ claim about “liberty”, especially since I cribbed some of his arguments. He would probably chuckle having emigrated from the Soviet Union. Se La Vie.

    AJ_Liberty (a4ff25)

  232. shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

    NJRob (27967b)

  233. Look how far the left’s war on liberalism has gone.

    Due process? If you’re a male on campus, gone. Privacy? Stripped away — by anonymous rape accusations, exposure of private emails, violence against people’s private homes, screaming at folks in restaurants, sordid exposés of sexual encounters, eagerly published by woke mags. Non-violence? Exceptions are available if you want to “punch a fascist.” Free speech? Only if you don’t mind being fired and ostracized as a righteous consequence. Free association? You’ve got to be kidding. Religious freedom? Illegitimate bigotry. Equality? Only group equity counts now, and individuals of the wrong identity can and must be discriminated against. Color-blindness? Another word for racism. Mercy? Not for oppressors. Intent? Irrelevant. Objectivity? A racist lie. Science? A manifestation of white supremacy. Biological sex? Replaced by socially constructed gender so that women have penises and men have periods. The rule of law? Not for migrants or looters. Borders? Racist. Viewpoint diversity? A form of violence against the oppressed…

    We are going through the greatest radicalization of the elites since the 1960s. This isn’t coming from the ground up. It’s being imposed ruthlessly from above, marshaled with a fusillade of constant MSM propaganda, and its victims are often the poor and the black and the brown. It nearly lost the Democrats the last election.

    Andrew Sullivan back to realizing the left is actually full of totalitarians.

    NJRob (27967b)

  234. @234 great example of the persecution complex I spoke of earlier.

    Time123 (9f42ee)

  235. Rip Murdock (d2a2a8) — 7/9/2021 @ 1:59 pm

    They are equal under the Equal Protection and Contracts Clause, and some other areas, they are not identical and are not natural persons. Corporations do not have 2nd or 5th amendment rights. They are not covered by the Comity Clause. There’s also some cases where they have a right not to be sued that would be hard or impossible to apply to a real person.

    Citizens United solved a problem and created several others. Same with Hobby Lobby. Are you confident that SCOTUS won’t reverse or limit either of those?

    frosty (f27e97)

  236. AJ_Liberty (a4ff25) — 7/9/2021 @ 3:40 pm

    I’m curious how Eugene Volokh would respond to Demosthenes’ claim about “liberty”, especially since I cribbed some of his arguments. He would probably chuckle having emigrated from the Soviet Union. Se La Vie.

    You’re thinking he’s call using the power of the state to coerce speech and behavior liberty because of this experiences in the Soviet Union? Or you’re thinking he’d decide doing that for the cake was fine since that’s not really a big deal?

    That seems like a really shallow definition of liberty. Either he’s off base or you’ve done a poor job cribbing.

    frosty (f27e97)

  237. AJ_Liberty (a4ff25) — 7/9/2021 @ 3:40 pm

    then the poet has much more protection because creating poetry is quintessential speech.

    Wait, what? Where is this coming from? Is there a list someplace? More protection? How does this degree of protection work? Where does other speech fall on this list and who’s in charge?

    frosty (f27e97)


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