6 ms·

Judges Say Web Design Is ‘Pure Speech’ and That the State Can Compel It Anyway

37 points by amadeuspagel 5y ago

AllegedAlec 5y ago
> The fact that "LGBT consumers may be able to obtain wedding-website design services from other businesses" is irrelevant. "The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist." What? This argument makes no sense. By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature.
- smorgusofborg 5y ago
  > By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature. Only in the context of civil rights discrimination, which is very established for publicly traded companies, but I'm not so sure about smaller business. I had neighbors who were unable to buy houses through a real estate agent in the 1970s because they were black, I am not sure what was and wasn't illegal in the discrimination given the weird rules for private people, clubs, etc, but if I remember correctly a realtor from a large concern (Coldwell Banker?) ultimately gave them service.
  - AllegedAlec 5y ago
    > context of civil rights discrimination Why is someone not wanting to build a website a civil rights violation? What civil right is being violated?
    - smorgusofborg 5y ago
      If you don't make any promises you can generally do whatever you want with whatever discretion as a generic website maker. They asked if they can specifically make wedding a service while having a religious belief that causes them to discriminate on basis of sexual orientation. They can't and we wouldn't be able to compel anyone with their beliefs to be in that business, but we don't have to adjust that business for people who hold their religious beliefs.
- lupire 5y ago
  That's the key error in the ruling. It's sort of correct in the narrows but it ignores the idea that the marketplace is a set overlapping and partially nested industries of increasing specificity, not a discrete collection of separate markets, which would force the reductio ad absurdum that majority reached but accepted as a valid conclusion.
leereeves 5y ago
The same argument could be used to forbid social media censorship. The objection there is that forcing social media companies to publish something they don't want to publish is compelled speech, but if the state is allowed to compel speech, then that objection becomes irrelevant.
caseyross 5y ago
Interesting. I can't say whether the judges' decision is a good legal theory, but it seems like, in practice, trying to enforce equal access to buying creative goods is a total non-starter. If I sell lots of identical goods, it's totally clear what the law is entitling prospective customers to buy. But if I make and sell creative works, I'm naturally making something different for each client. How could anyone decide whether the work I do on one project is "equivalent" to the work done on another, or if a completed workpiece is up to my "usual standard", or even whether I put in "the same amount of effort" for this client as I did for a different client, when by definition each project is one-of-a-kind?
- smorgusofborg 5y ago
  Why is that different than any other service? I knew a lot of people who behaved immaturely in their first service job with someone they thought was a good victim, and when they were called out their boss had to work to make it right. I don't really get the argument in a business context for this level of "religious tolerance". If you are building to suit, you are at best an artisan and we compel artisans to do all sorts of things since the first building fell down. If you are Amish unemployment shouldn't compel you to work as an electrician and that might leave you shoveling poo. If your convictions are real, where is the problem?
chadlavi 5y ago
Can we not post links to garbage publications like this? Is there coverage of this from a credible news org that not a libertarian opinion magazine?
- blacktriangle 5y ago
  At least you're honest about living in a left-wing bubble.
haswell 5y ago
The article glosses over a very important piece of this story. No one tried to compel this designer to make a marriage site they disagreed with. The design firm preemptively filed the suit looking for a summary judgement guaranteeing they would not have to create such sites. They were looking for a fight. With that said, there’s something about this ruling that feels very sinister. The idea that an artist might be compelled to create art that they fundamentally disagree with is some very dystopian stuff. I’m a member of the LGBTQ+ community, and very practically speaking, if I want to commission art, I want to pay for something that the artist will pour their passion into. It would disturb me if they were forced to create artwork for me under duress, even if I obviously disagree with the reasons they’d prefer not to. Edit: Another aspect I hadn't considered - now imagine this ruling is upheld, and imagine artists don't have an opportunity to say "no". As a customer, I now might not even know where the artist stands, and honestly I'd like the option not to give such artists my business. It also raises questions about whether the finished product could ever be of the desired quality.
- eesmith 5y ago
  I agree. The issue is because 330 Creative LLC wanted to include the following in marketing materials: > These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage –the very story He is calling me to promote. and follow that restriction, but "Appellants have not yet offered wedding-related services, or published the Proposed Statement, because Appellants are unwilling to violate CADA." (quoting from the linked-to decision at https://reason.com/wp-content/uploads/2021/07/303Creative.pdf https://reason.com/wp-content/uploads/2021/07/303Creative.pd... ). Indeed, the appellates state they are: > willing to “create custom graphics and websites for gay, lesbian, or bisexual clients ... so long as the custom graphics and websites do not violate [Appellants’] religious beliefs, as is true for all customers.” ... Thus, Appellants are not injured because CADA might “compel” them to create a website announcing a birthday party for a gay man; that is something Appellants would do willingly. Nor are Appellants injured because CADA might “compel” them to create a website announcing “God is Dead”; Colorado concedes CADA would not apply if Appellants would not produce such a website for any customers. So the lawsuit is really targeting just one special circumstance - gay marriage - as a sort of wedge issue. https://freedomforallamericans.org/303-creative-v-elenis/ https://freedomforallamericans.org/303-creative-v-elenis/ comments "The designer is represented by the Alliance Defending Freedom, an organization that works aggressively to restrict and roll back non-discrimination protections and basic equality for LGBTQ Americans."
prirun 5y ago
Compelling someone to do a thing will guarantee a crappy outcome, so while I get that it's not good that someone wouldn't make the cake, forcing them to make it gives them a million opportunities to make a shitty cake. Who would want that on their wedding day? I would be disappointed that a company wouldn't service me because I was gay, but I would hate it even more if they were forced to provide (shitty) service to me.
- BitwiseFool 5y ago
  It's not about getting a cake or a website, it's about using the legal system to establish a precedent that it will be illegal to refuse service based on one's personal beliefs about the LGBTQIA+ community. The two services in question are just a means to an end.
  - prirun 5y ago
    I get that it's not about cakes and websites. But the legal system can't force someone to do their best work for you. It can't be illegal to not do your best.
CryptoPunk 5y ago
The Civil Rights Act's prohibition of private sector discrimination in "public accommodations" was always a mistake. If there is indeed such a thing as a service that is categorically a "public accommodation" even if a wholly private entity is providing it, then it should be provided directly by the state, or the state should provide some subsidy to select private enterprises in exchange for them entering an irrevocable covenant where they are bound to follow guidelines that advance the public interest.

37 points by amadeuspagel 5y ago

> The fact that "LGBT consumers may be able to obtain wedding-website design services from other businesses" is irrelevant. "The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist." What? This argument makes no sense. By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature.

smorgusofborg 5y ago
> By this logic, every service ever can be compelled to do anything, because by definition they are the only one creating something of that quality and nature. Only in the context of civil rights discrimination, which is very established for publicly traded companies, but I'm not so sure about smaller business. I had neighbors who were unable to buy houses through a real estate agent in the 1970s because they were black, I am not sure what was and wasn't illegal in the discrimination given the weird rules for private people, clubs, etc, but if I remember correctly a realtor from a large concern (Coldwell Banker?) ultimately gave them service.
- AllegedAlec 5y ago
  > context of civil rights discrimination Why is someone not wanting to build a website a civil rights violation? What civil right is being violated?
  - smorgusofborg 5y ago
    If you don't make any promises you can generally do whatever you want with whatever discretion as a generic website maker. They asked if they can specifically make wedding a service while having a religious belief that causes them to discriminate on basis of sexual orientation. They can't and we wouldn't be able to compel anyone with their beliefs to be in that business, but we don't have to adjust that business for people who hold their religious beliefs.
lupire 5y ago
That's the key error in the ruling. It's sort of correct in the narrows but it ignores the idea that the marketplace is a set overlapping and partially nested industries of increasing specificity, not a discrete collection of separate markets, which would force the reductio ad absurdum that majority reached but accepted as a valid conclusion.

leereeves 5y ago

The same argument could be used to forbid social media censorship. The objection there is that forcing social media companies to publish something they don't want to publish is compelled speech, but if the state is allowed to compel speech, then that objection becomes irrelevant.

caseyross 5y ago

Interesting. I can't say whether the judges' decision is a good legal theory, but it seems like, in practice, trying to enforce equal access to buying creative goods is a total non-starter. If I sell lots of identical goods, it's totally clear what the law is entitling prospective customers to buy. But if I make and sell creative works, I'm naturally making something different for each client. How could anyone decide whether the work I do on one project is "equivalent" to the work done on another, or if a completed workpiece is up to my "usual standard", or even whether I put in "the same amount of effort" for this client as I did for a different client, when by definition each project is one-of-a-kind?

smorgusofborg 5y ago
Why is that different than any other service? I knew a lot of people who behaved immaturely in their first service job with someone they thought was a good victim, and when they were called out their boss had to work to make it right. I don't really get the argument in a business context for this level of "religious tolerance". If you are building to suit, you are at best an artisan and we compel artisans to do all sorts of things since the first building fell down. If you are Amish unemployment shouldn't compel you to work as an electrician and that might leave you shoveling poo. If your convictions are real, where is the problem?

chadlavi 5y ago

Can we not post links to garbage publications like this? Is there coverage of this from a credible news org that not a libertarian opinion magazine?

blacktriangle 5y ago
At least you're honest about living in a left-wing bubble.

haswell 5y ago

The article glosses over a very important piece of this story. No one tried to compel this designer to make a marriage site they disagreed with. The design firm preemptively filed the suit looking for a summary judgement guaranteeing they would not have to create such sites. They were looking for a fight. With that said, there’s something about this ruling that feels very sinister. The idea that an artist might be compelled to create art that they fundamentally disagree with is some very dystopian stuff. I’m a member of the LGBTQ+ community, and very practically speaking, if I want to commission art, I want to pay for something that the artist will pour their passion into. It would disturb me if they were forced to create artwork for me under duress, even if I obviously disagree with the reasons they’d prefer not to. Edit: Another aspect I hadn't considered - now imagine this ruling is upheld, and imagine artists don't have an opportunity to say "no". As a customer, I now might not even know where the artist stands, and honestly I'd like the option not to give such artists my business. It also raises questions about whether the finished product could ever be of the desired quality.

eesmith 5y ago
I agree. The issue is because 330 Creative LLC wanted to include the following in marketing materials: > These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage –the very story He is calling me to promote. and follow that restriction, but "Appellants have not yet offered wedding-related services, or published the Proposed Statement, because Appellants are unwilling to violate CADA." (quoting from the linked-to decision at https://reason.com/wp-content/uploads/2021/07/303Creative.pdf https://reason.com/wp-content/uploads/2021/07/303Creative.pd... ). Indeed, the appellates state they are: > willing to “create custom graphics and websites for gay, lesbian, or bisexual clients ... so long as the custom graphics and websites do not violate [Appellants’] religious beliefs, as is true for all customers.” ... Thus, Appellants are not injured because CADA might “compel” them to create a website announcing a birthday party for a gay man; that is something Appellants would do willingly. Nor are Appellants injured because CADA might “compel” them to create a website announcing “God is Dead”; Colorado concedes CADA would not apply if Appellants would not produce such a website for any customers. So the lawsuit is really targeting just one special circumstance - gay marriage - as a sort of wedge issue. https://freedomforallamericans.org/303-creative-v-elenis/ https://freedomforallamericans.org/303-creative-v-elenis/ comments "The designer is represented by the Alliance Defending Freedom, an organization that works aggressively to restrict and roll back non-discrimination protections and basic equality for LGBTQ Americans."

prirun 5y ago

Compelling someone to do a thing will guarantee a crappy outcome, so while I get that it's not good that someone wouldn't make the cake, forcing them to make it gives them a million opportunities to make a shitty cake. Who would want that on their wedding day? I would be disappointed that a company wouldn't service me because I was gay, but I would hate it even more if they were forced to provide (shitty) service to me.

BitwiseFool 5y ago
It's not about getting a cake or a website, it's about using the legal system to establish a precedent that it will be illegal to refuse service based on one's personal beliefs about the LGBTQIA+ community. The two services in question are just a means to an end.
- prirun 5y ago
  I get that it's not about cakes and websites. But the legal system can't force someone to do their best work for you. It can't be illegal to not do your best.

CryptoPunk 5y ago

The Civil Rights Act's prohibition of private sector discrimination in "public accommodations" was always a mistake. If there is indeed such a thing as a service that is categorically a "public accommodation" even if a wholly private entity is providing it, then it should be provided directly by the state, or the state should provide some subsidy to select private enterprises in exchange for them entering an irrevocable covenant where they are bound to follow guidelines that advance the public interest.