Conservative SCOTUS is a ****ing joke but it’s not funny

Nah
She just got better SAT scores and GPA then the Jamelle Hills at her school

@AroundTheWorld
@basso
@ROXRAN
@Salvy

 

https://reason.com/volokh/2023/07/03/how-to-read-303-creative-v-elenis/

How to Read 303 Creative v. Elenis
by Dale Carpenter
7.3.2023 2:11 PM

On Friday, the Supreme Court ruled in 303 Creative v. Elenis that Colorado cannot force a website designer to create messages celebrating same-sex marriages. Eugene and I joined others in an amicus brief arguing that this potential application of a state public accommodations law would be an unconstitutional speech compulsion. As Eugene has already noted, the Supreme Court agreed.

I read Justice Gorsuch's decision as broader in some respects than some may hope it is. It can't reasonably be cabined to all of its specific facts. The rationale for the vendor's message-based objection--religious or not, internally consistent or not, odious or not--does not matter. Op. at 24-25. Nor, in principle, are the speech protections the Court outlined limited to the creation of messages about same-sex marriage, marriage in general, or homosexuality.

On the other hand, the decision is also narrower in important ways than some progressives fear or some religious conservatives/libertarians may hope. I read 303 Creative to hold that a vendor cannot be compelled by the government:

(1) to create customized and expressive products (whether goods or services) that constitute the vendor's own expression (op. at 9, 16);

(2) where the vendor's objection is to the message contained in the product itself, not to the identity or status of the customer (op. at 18 n. 3, 20).

Consider each part of this:

I. The product must be customized and expressive

The Court repeatedly emphasized the unusual nature of the product Lorrie Smith, the website designer, proposed to sell: working closely with each individual customer to tailor specific and original messages by using Smith's own words and designs. Very few businesses take on such individualized commissions. She was not selling grilled cheese sandwiches at a lunch counter. Because of the requirements of customization and expressiveness, there will be no claim for the "vast array of businesses" selling "innumerable goods and services." Op. at 14.

First, almost all of the products we buy are neither customized nor expressive. From dairy to desks to dry cleaning, they are what the Court calls "ordinary commercial products."

Second, most customized products are not expressive. Think of the Ford F150, which has literally millions of option combinations. Or a Whopper, which was once promoted with the tagline, "Have it your way," indicating Burger King's willingness to tailor the burger to customers' taste preferences. There will be no claim for businesses selling these kinds of products.

Of course, this analysis does not answer all questions on the margins. The biggest of these will be: what sorts of customized products count as expressive? (Given Colorado's stipulations and the nature of the proposed services for wedding website design, product expressiveness wasn't a close question in 303 Creative. Op. at 21-22).

Line-drawing itself is not a new problem in free speech cases. In particular, the Court has developed doctrines to distinguish what is protected speech from what is unprotected conduct. That test combines elements that are both subjective (the speaker's own intention to communicate a message) and objective (the onlooker's perception whether the message has actually been communicated). Under this test, conduct is sometimes expressive but most often not. What's new after 303 Creative is that courts will now need to apply similar principles to commercial products.

There is a risk that some lower courts will be too aggressive in constitutionally exempting non-expressive commercial products from anti-discrimination rules. That result would not only be harmful to the dignitary and material interests of buyers, but it would ultimately discredit and undermine the genuine First Amendment interests of speech creators.

Eugene and I have offered some guidelines for distinguishing expressive from non-expressive products in prior briefs (see, e.g. our amicus brief here at pp. 5-14, explaining in Masterpiece Cakeshop why cake-making is not generally expressive). Some kinds of products will be clearly expressive, and others will be expressive on the margins, but the vast majority won't be expressive. There will be hard and intensely fact-bound judgments to make, based on what has historically counted as expressive (e.g. parades, books, paintings, and films) and based on the use of intrinsically or inherently expressive elements in the work (e.g., speaking, writing, and deploying symbols). The mere fact that the vendor subjectively regards the product as "art" that expresses some message would not be enough to trigger First Amendment protection. A limousine driver may think he turns corners with a distinctive flair, but his craft is neither historically nor intrinsically expressive. A Subway "sandwich artist" might be creating something worthwhile, but it's not speech.

Before Friday, the answer of some scholars and organizations like the ACLU was that none of this matters because when you're selling things in the public marketplace you basically have no First Amendment rights. Your choices were to quit your trade or come to heel. 303 Creative is clear that this answer will no longer suffice. It never really did. Op. at 16-17, 23.

Third, most expressive products are not customized. Think of a store that sells paintings or sheet music or books. Lots of protected expression goes into these products, but they're not created according to the demands or preferences of the particular customer. Since the artist or composer or writer has already created the product, the state has not compelled their creation. Refusing to sell these expressive products to protected classes of customers amounts to illegal status- or identity-based discrimination, which is not protected by the First Amendment. In general, if it's already on the shelf (physically or online) you have to sell it to all comers.

Here, too, there will be some cases at the margins of both customization and expression. As the dissent acknowledged, portrait photography is a generally expressive medium. Sotomayor dissent at 28. But even in this presumptively constitutionally protected context, some settings are more like an F150 assembly line than Annie Leibovitz's studio. I don't think a photographer offering to take standard school photos, corporate headshots, passport photos, or pictures with a mall Santa truly customizes the product or expresses something to a degree that warrants constitutional protection. Such a claim would trivialize free speech protection in the way that the Court in Rumsfeld v. FAIR thought the law schools' objections to sending emails about military-recruiter meeting times and locations did.

A wedding photographer, on the other hand, does offer highly customized and expressive services, working closely with each customer to depict the wedding in a certain way. (Cato, Eugene, and I first made this argument a decade ago in an amicus brief supporting certiorari in Elane Photograhy LLC v. Willock. The Court denied cert.)

Similarly, a website designer who offers a preset menu of plug-and-play options for customers to create their own wedding websites is offering a product customized mainly by the buyer, not the designer. It's the customer's speech, not the vendor's.

By contrast, a website designer like Smith who consults with customers to compose original written messages and creative graphics is herself customizing the product. The product is collaborative. And while it's certainly the couple's expression, it's also importantly the designer's.

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more

 

conclusion

II. The objection must be to the message in the product, not the customer's status

The vendor's objection also has to be to the message contained in the product, not to the status or identity of the customer. Businesses can't claim constitutional protection for a categorical rule that they won't sell commissioned products to gays, Jews, Blacks, or women. And of course they will not get a free-speech exemption from employing, insuring, housing, medically treating, or serving any particular class of people. 303 Creative reaffirms the cardinal rule that the First Amendment does not shield these acts of status-based discrimination.

There will be questions about whether the message-based objection is tantamount to a status-based one and therefore unprotected. Take this very case. As a matter of statute, Colorado regards discrimination based on opposition to same-sex marriage as a form of anti-gay discrimination in the same way that a ban of wearing yarmulkes is a form of discrimination against Jews. That seems justifiable in most regulatory and anti-discrimination contexts. For example, an employer who fires a worker because she's in a same-sex marriage has fired the worker based on her sexual orientation. State bans on same-sex marriage or denials of benefits to married same-sex couples similarly constitute sexual orientation discrimination.

But the federal government's argument that as a matter of constitutional law objections to same-sex marriages are necessarily status-based--equivalent to objections to gay people--won't fly for the compelled creation of expressive products. That's because, unlike in the regulatory context or where non-expressive discrimination occurs, the protected expression of another person is at stake "about a matter of major significance." Op. at 25. Massachusetts in Hurley and New Jersey in Dale were similarly free to treat privately organized parades and membership groups, respectively, as "public accommodations" for purposes of state law but those statutory applications could not prevail over First Amendment rights.

The New York Times print-edition headline on Saturday, "Website Designer Wins Right to Turn Away Gay People," was therefore misleading. (The online headline was more accurate.) The Court explicitly rejected the dissent's contention that it was permitting vendors to refuse service to classes of people. Here the vendor only refused to create a message.

Taken together, I think the 303 Creative requirements for a successful speech claim (message-based objections to creating customized and expressive products) also mean that the business' objection must be based on expression contained in the product itself. It will not suffice to say that the very fact of the sale alone sends a message the vendor does not want to send. For example, a baker could not refuse to sell a gay couple a premade wedding cake sitting in a display case on the grounds that the sale signals approval of their marriage.

It will also not suffice that the vendor objects simply to the purpose or occasion for which the customer intends to use a product. If a transgender person wants to buy pink and blue streamers to celebrate their gender transition, the business can't refuse to sell the streamers based solely on the purpose for the use. Unlike the wedding websites in 303 Creative (op. at 5), the ultimate use and configuration of the streamers in the customer's home would not likely be understood by others as the vendor's speech or even as a collaboration between the vendor and customer.

In other words, as I read the Court's opinion, it has not approved protection for unadorned complicity objections, i.e., claims that any connection to, or facilitation of, an objectionable act or message is constitutionally shielded from legal compulsion.

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You either really like the outcome or hate your fellow Rocketfan, I don't know which is more true. You've been on this like a squirrel trying to get a nut.

 

I sometimes wonder if os really bothers to read the sht load of text he spams at folks or just copy pasta as "evidence" to back his stance. If so where does he even have the time to read all the sht and digest it.

Folks just have to acknowledge that after all the hypocritical bs the conservatives pulled to stack the Supreme Court with conservatives, u can't trust the highest court that is unregulated/free of any sort of punishment is to b ethical, fair and unbias when it comes to these ruling. Just got to make do and adapt to the backwards conservative world/rulings until the conservative justices die off and balance is restored or until the courts is expanded.

 

I hate ignorant takes

 

yes, that would be an ignorant take

 

That's the way they have made it so you can sell or not sell to whom you want now.

 

no

 

Well that's the way it seems now with this ultra conservative Scotus that was put in place by mad Mitch and friends.

 

no

 

Right wing scumbags will come for it all. At some point this country will realize the republican is useless and their cult followers are dangerous people.

 

Until this generator starts to see that all this right wing craziness is not going to go well for them and vote these scumbags out of office it's only going to get worse.

 

A Win for All Americans

https://lawliberty.org/a-win-for-all-americans/

excerpt:

In truth, those who characterize 303 Creative as a defeat for LGBT rights are quite wrong. The case is a victory for the freedom of speech that Christians, the LGBT community, and all Americans enjoy. All in America, whether they be religious believers or not, whether they identify as LGBT or not, can use their powers of speech in the marketplace of ideas, as well as in the marketplace of goods and services. They may work with entities in the commercial realm that advocate messages they support. And, because of 303 Creative, they may also control their expressive conduct and expressive associations in the commercial exchanges by refusing to communicate messages they do not support. Furthermore, no group may use the power of the government, when they happen to be in the majority, to silence messages on serious social issues they deem to be offensive.

Finally, the dissent raised some troubling hypotheticals. Among those described are the following scenarios: If a business offers passport photos, may it deny those services to Mexican Americans because the owner opposes immigration from Mexico? If a photographer believes a woman’s place is in the home, may they refuse to offer corporate headshots to women?

Justice Gorsuch refused to engage in speculation, noting that these scenarios weren’t before the Court. Yet surely our powers of discernment are sharp enough to understand that a passport photographer does not engage in their own speech in taking pictures that must meet government specifications. Nor is it likely that a photographer who takes corporate headshots is speaking in their own voice.

303 Creative may be maligned in the short term by those who wished for another outcome for their favored protected class. But those who denigrate it today may find that they will benefit from it tomorrow. The case limits the potential for majority tyranny within localities where protected classes are politically dominant. It levels the playing field for expression, no matter which side of a commercial transaction one may be on. And it favors the protection of speech and debate over feelings. The case is a win for all who treasure the First Amendment.
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Michael Imperioli clarifies remarks forbidding ‘bigots and homophobes’ from watching his work

https://www.cnn.com/2023/07/05/entertainment/michael-imperioli-clarifies-remarks/index.html

excerpt:

“I believe in religious freedom, freedom of speech and the right for individuals to pursue happiness. I also believe in the separation of church and state as stated in the First Amendment,” Imperioli wrote. “I believe that all people regardless of race, religion, color, creed, gender or sexuality are entitled to freedom, equality, rights and protection under the laws of our nation. And i vehemently oppose hate, prejudice and bigotry and always have. Some people have not gotten the irony I was expressing so i thought i’d be more explicit.”
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more at the link

 

Liberals and others who are concerned about religious zealots pushing their rights over civil rights need to do a better job defending against bs or makeup cases. Lessons learned below.

Lessons From 303 Creative: We Must Intervene To Save Democracy - Democracy Docket

This last ruling — in a case known as 303 Creative LLC v. Elenis — took a surprising turn when it was revealed a key fact asserted in the lawsuit — that a man named Stewart had asked the plaintiff to design a same-sex wedding website — was untrue. Stewart, whose last name has been withheld, in fact, never contacted the firm, was not getting married and, in fact, has been married to a woman for more than a decade.

Making matters worse, the state of Colorado, who was charged with defending against the lawsuit, stipulated to most of the underlying facts of the case including the story about Stewart. By the time the Supreme Court considered the case, there had been too little interrogation of the asserted facts to determine if they were true.

Critics of the decision have questioned whether the attorneys for the plaintiff – a Christian web designer who sought to be permitted to discriminate against LGBTQ+ couples seeking wedding website designs – knew or should have known that the story about Stewart was false. They have also debated what, if anything, the Supreme Court should do now.

But I’m left wondering something else. Why did no one intervene to help defend the Colorado law in this case? Why was the defense of a critical civil rights law left entirely to the state and the lawyers working in the attorney general’s office?

The federal rules of civil procedure are not interesting, not even for lawyers, but they are essential to protecting the integrity of the judicial system. One of those rules — Rule 11 — has been in the news recently as it allows for sanctions against parties and lawyers who file frivolous pleadings.

There are 86 other rules, but buried in the middle, is a critical, democracy-saving, rule: Rule 24. On its face, Rule 24 seems like a snooze. It sets the conditions, or the rules, by which someone not a party to a lawsuit can become a party — how they can intervene.

Intervention is what it sounds like. You essentially invite yourself into the middle of someone else’s lawsuit. It may sound rude, but it’s important to the fair administration of justice.

Sometimes you are entitled to intervene, called intervention of right. Basically, this is when the resolution of the lawsuit will directly affect you and you want a say in the outcome. Most intervention, however, is up to the judge. So-called permissive intervention is available to anyone who “has a claim or defense that shares with the main action a common question of law or fact.”

A party seeking to intervene in a lawsuit can do so on either side of the case. Sometimes someone wants to join the case as a plaintiff. Other times, a proposed intervenor worries about a lawsuit succeeding and intervenes as a defendant. It is the ability to intervene as a defendant that makes Rule 24 so powerful in the fight for democracy.

Republicans often sue states claiming that the voting laws are too supportive of voting. (Yes, that happens.) In those instances, a voting organization, political party or group of voters can ask the court to be allowed to join the lawsuit as defendants for the purpose of defending the law against the Republican lawsuit.

There are several reasons why this is important. First, pro-democracy groups are able to bolster the arguments made by the state and county defendants. They often have more resources, more specialized lawyers and expert witnesses. They also have the benefit of practical experience with laws at issue. They are the groups that are registering and turning out voters.

In the 2020 post-election, my team and I represented Biden and the Democratic Party in more than 60 cases filed by former President Donald Trump and his allies. In most of those cases we made ourselves a party. We intervened.

It is not that we did not trust the attorneys for the states being sued. However, we wanted to make certain that the strongest defenses were asserted and the most aggressive legal position advanced. It would have been reckless to outsource the defense of the election results to the government defendants, no matter how much we respected and had confidence in them.

I said in an interview last year, “I don’t want to leave the Republican Party unattended. I want to babysit them in every case they file.” That was just as accurate then as it is today.

I have learned from experience that smart organizations own the problems that they need to own. They don’t wish the problems away. They don’t outsource solving them to others. If a problem could turn into an existential crisis, better to own it from the start. Better to intervene.

This brings me back to 303 Creative.

Colorado had previously been sued by a conservative wedding cake baker on a nearly identical theory. The Supreme Court ducked the constitutional question in that case, but no one who read that decision thought the state of Colorado had the situation under control.

It was foreseeable that the right-wing would file another test case, and Colorado proved itself to be a good venue. From the start, it was clear that this case was being filed to reach a conservative Supreme Court. Yet, no one who cares about this issue bothered to intervene.

Had someone intervened as a defendant, they hopefully could have refused to stipulate to the plaintiff’s facts. To the contrary, had someone intervened, they might have conducted intensive discovery into the premise of the lawsuit and discovered that at least one of the key facts in the complaint was untrue. They might have contested others as well, like whether the woman behind this lawsuit genuinely planned to build wedding websites.

A party intervening as a defendant would have hopefully deposed the plaintiff and others around her, rather than accepting sworn statements about the facts. They would have, perhaps, insisted on a full trial, with testimony and cross examination.

This is not to criticize the attorneys working for the state of Colorado who litigated this case. I have no doubt they had good reasons to make the strategic litigation decisions they did. Representing the state always carried advantages and limitations.

However, an organization with attorneys, with experience in aggressive constitutional litigation, might have spotted issues that the state’s lawyers did not. They would have added resources that might have allowed for more thorough discovery and briefing. At a minimum, they would have added another set of eyes on a critical case for civil rights.

As a voting rights lawyer, I babysit Republican lawsuits because democracy deserves the best defense of voting rights. I won’t sit by and assume someone else will do it because it may turn out that no one does it. I would rather be in the fight now than later wonder why the fight was lost. So long as the fate of democracy is on the docket, I will intervene.

 

Do you really think that the recent rulings have been made contrary to the Constitution? If so, can you explain how?