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SCOTUS Ruling - 1st Amendment & Compelling Speech for Same-Sex Couples
Recorded: July 3, 2023 Duration: 2:00:10Space Recording
Short Summary
The discussion focused on a Supreme Court ruling regarding a web designer's refusal to create a website for a same-sex couple, citing freedom of speech and expression. The case highlighted the tension between anti-discrimination laws and First Amendment rights, with opinions divided on whether the ruling was politically motivated or a necessary protection of constitutional rights. Participants debated the implications of the decision, including potential impacts on public accommodations and expressive services, while considering broader societal and legal contexts.
Full Transcription
Right, guys, sorry about that.
That's right.
By the way, we're just inviting everybody.
So, yeah, thank you very much for joining us.
We've got some amazing panel coming on.
So what we're going to be talking about today is the Supreme Court ruling.
Right.
And what that's related to is the case of 303 creative through Laurie Smith and whether she should be forced to create a website for a same-sex couple.
So the argument was about freedom of speech, freedom of expression and forced speech.
So hopefully we'll cover it.
We've got people from a variety of backgrounds of views.
But let me pass it initially on to Viva Frey.
Viva Freya, thank you for joining us.
What's your initial thought about the case?
Or if you can explain to the public generally,
what was the case about?
And then we can go into the specifics of it.
Sorry, Viva, are you there?
Oh, you dropped. Following. Are you there? Can you hear me?
Hey, how are you?
Yeah, good, thanks.
So if you can give us an overview of what the case...
I mean, I have read this, so basically, just to give you a bit of background,
I read this case about six months ago, and I read every single legal document related to it.
So I'd love to hear your thoughts and just give me an overview.
Well, if purposes of background, three or three creative...
created as a web designer, and they were anticipating that under California's Anti-Discrimination Act,
that they would be subject to a requirement to provide their services to various opinions that they may not wish to support.
And what they do is they actually, in the creation of the design, they add their own voice,
and their own creative talents.
So they felt it was their own individual expression
that they felt was ultimately going to be co-opted
if they were obligated to comply with the CADA,
the Colorado Anti-Discrimination Act.
So they were seeking a declaratory judgment
that they're exempt from that
because they felt it was violating their first member rights.
The Colorado courts...
um said that they were obligated that they would not grant the injunction to protect them from that
anti-discrimination act the uh circuit court agreed that uh they're going to be obligated to uh
to provide services, specifically what their objection was to any messaging that may support gay marriage.
And when they got the Supreme Court, Supreme Court came back and said that you cannot compel speech.
And for a government to direct the messaging and direct these web designers to say that they must
say, or provide messaging, which indicates that they support the concept of gay marriage, would be violating, would be compulsory speech.
And there was some phenomenal quotes in the decision, which were basically saying that our constitutional constellation,
I think the something's the fact that the firmest star and a constitution constellation is the right free marketplace of ideas and that the government cannot compel someone to say something, whether it's by fine, by threat of imprisonment or anything of that nature.
So I'll tell you, you know, as far as what the, there's a lot of misconception as to what this law is saying.
versus what this case is actually saying rather than what it actually is saying.
The court was very clear in saying that this is not open opportunity for people to discriminate against any protected class,
including gay. It doesn't have to be gay. It can be Jew, it could be minority.
It could be in California. It could be political. It could be a political affiliation could be considered a protected class.
And that states have a right to
protect classes and you cannot discriminate from providing services.
And one of the things that was stipulated to by the defendants,
we're happy to provide services to anyone.
Doesn't matter where they're straight,
doesn't matter whether they're gay,
doesn't matter what minority they are,
we're simply unwilling to provide messaging
that would go against our religious beliefs.
This is really not about religious freedoms because there's nothing in this case that says that it's because of their religious freedoms that they're entitled to this protection, that the state cannot compel them.
It's really First Amendment based on freedom of expression.
And they said that any compulsory speech would be a violation of that firm right.
But they were very clear, both the court and the movement were very clear that this was never an objective about the right to discriminate against gays because you don't like gays.
That would theoretically extend to anyone.
It would extend to blacks, Jews, any group.
And that was never what this case is about.
A lot of people are trying to make it as if this is a step back in the rights of
of minorities, when really this is just the court coming to grips with a conflict of different
rights. You have your right, your 14th Amendment, which is basically saying, you know,
people want to be protected and there's a right to protect them and equal protection,
especially if they're designated as a protected class. And that constitutional amendment
seems to be coming into loggerheads into conflict with the First Amendment right of freedom
of speech. And the court was basically saying that,
This, that allowing people to say whatever they want or preventing the government from stopping them from saying whatever they want is not considered any sort of violation of their 14th Amendment rights.
And the state has absolutely no right to step in the way of that.
So that's a general overview as to what this case has been about.
Let me just quickly, just to broaden it a bit and then we'll let's go into the specifics of the case.
But let me go to Liberty. Liberty. Liberty.
I believe that this case went to the district court,
and in the district court, 303 Creative Lost.
in the court of appeal, three or three creative lost.
I accept that there was two Democrat appointed judges on one Republican appointed judge.
And then it went to the Supreme Court.
And obviously the large majority of those sitting on the Supreme Court are Republican appointed judges.
So was this case more politically?
And just to add to that, three.
Three or three creative, there was even an argument that it wasn't really a website and all of this was orchestrated in order to get this judgment or get a judgment from the Supreme Court.
So Liberty, just a question to you.
Do you think this entire case was more politically motivated as opposed to getting some form of legal judgment?
I think it's probably correct that that's the case.
But in my opinion, it really doesn't go far enough.
Yeah.
There's a real issue here as to a violation of property rights and the freedom to associate or disassociate with people at will.
So I wish they had gone further as opposed to it just being a free speech matter.
I think that there's compelling arguments to be made that it's a violation of the property rights of the business owner that they have to serve anyone for any reason.
At least that's a libertarian perspective on it.
But yes, I think that oftentimes cases like this that get escalated to the Supreme Court are done so for political reasons and to set precedent for additional cases down the road.
Let me go to Doc.
I understand the specifics of this, but just to give you the other side of the argument, and then I look to hear your thoughts on that, Doc, that what we're doing now is there's been some form of prejudice against...
certain marginalised communities.
For example, now they can be refused based on force speech
or be refused based on them wanting a unique,
be spoke product being created.
And what's to stop this being taken further?
And you're essentially back to the 1950s
when basically black people weren't being served.
Like, what's, I'd love to hear your thoughts on,
and kind of like a rebuttal on that.
Well, no, I don't think this gets anywhere close to that. People are going to misinterpret it or interpret it correctly and infer some malintent on the court. And to me, that just speaks to their ignorance of constitutional law.
the following, you know, had it mostly right, but there's a subtle aspect of this that
wasn't touched on, at least the part that I heard him discuss.
This is, in my mind, this is really a balancing, not the 14th Amendment, although it is implicated,
but it's balancing the compelled speech doctrine against the right of free speech
and the right of freedom of religion.
I'll explain what I mean by that.
There is a history and precedent to the First Amendment's protections against compelled speech.
What's compelled speech in the context of this case?
It's limited to expressive conduct, quote unquote.
It's a term of legal art.
What's expressive conduct?
Expressive conduct in this case is making a website for a gay couple
tailored to their particular individual characteristics,
their names, their dates, all of that.
And the court said, based on the compelled expression,
or the compelled speech doctrine,
that this was not permissible.
And what other cases have the court used
to announce this standard?
Well, one was the case of burning flags.
which was deemed to be constitutional after a long progress through lower courts all across the country.
And it was a big deal back in the 90s.
But the burning of the flag was judged to be expressive conduct meant to send the message that I oppose the war and I opposed my government.
There's been others, a gentleman who wore...
fuck Nixon, I think, walking into a courtroom,
was arrested and charged.
And that was termed to be expressive conduct.
Signs on taxis that had a license to operate
were mandated by the government.
And taxi drivers in New York took them to court
to say, I don't appreciate this message,
I don't support it.
And you cannot condition my property right on the license
to subject myself to spread your message.
So the court basically said when it comes to expressive conduct,
expressive conduct through speech in this compelled speech doctrine,
you cannot compel a person take a religious position against their religious belief.
In this case, this woman, I guess, was a Catholic and didn't believe in gay marriage.
And so that's where the court focused its decision on.
And if you read it and you know the history, you can see how limited this case really is.
Okay.
So let me go to Aviva Frey.
First of all, thanks for joining us.
So this case went to the court of appeal.
And actually in every single court, this case lost in the district court,
it lost in the court of appeal.
And it's only in the Supreme Court that the case was won.
So my question to you is, again...
was the right decision?
Well, I think that I know what the answer to the decision made.
But I mean, what do you think about that?
I mean, it looks like this is all just political.
Like no one's even considered the legal or the constitutional aspects of the law.
There is an element of predictability to certain things where when you know that it's going to be a political decision,
you can basically predict how certain justices are going to render judgment.
It doesn't mean that all politics are equal.
I mean, you can read the majority decision.
and then you can read the dissenting opinion,
and one is factually based and legally based,
and the other is hyperbolic exaggeration of what is at issue.
And when you read the majority decision quoting the dissenting,
where they say, you know, this is basically ratified discrimination.
Right.
One is a caricature of a decision that comes from an area of motivated reasoning where it's not just that it's about equal rights, it's about compelled speech almost literally.
And the dissenting opinion saying, this opens the door to overt discrimination, ignoring the fundamental distinction that the expressive element to the aspect of the business.
This is not a question of saying I'm not renting a hotel room to a black family or...
or to a gay woman, you know, a gay man or a lesbian woman,
it's not a question of that.
There is a creative aspect to the business
which makes it fundamentally different
than a company that sells widgets.
And the majority decision fleshed it out.
They said this is not a question of saying,
I refuse to serve gay couples.
They said in the stipulated facts,
we will serve gay couples,
We're not going to deny the business that we've opened to the public to gay couples.
We're just not going to provide custom messaging that goes against our beliefs because we run an expressive business.
We don't just sell widgets.
And the minority decision, politically motivated as it was, simply ignores this distinctive element,
that this is not just the question of selling co-cans to the public.
Public accommodations, meaning we're open to the public.
We offer a widget-type service, and we're not allowed discriminating once we are open to the public.
who we serve based on protected classes, protected statuses.
But when it comes to expressive types of businesses
in which First Amendment rights are at play,
you can think of the legal profession.
It's not because I'm a lawyer open to the public
that I have to take certain cases
that I might have religious, spiritual problems with.
And so once that expressive element comes to play in a decision,
it's no longer about widgets,
there are competing constitutional rights at play
and the majority got it right
whereas the minority decision
they basically want people to be forced
to express ideas they do not believe in
because it's about domination,
ideological domination,
as opposed to protecting constitutional rights.
It's a half step toward what they're doing in Canada with Measure C, where you're compelled by law to say whatever the gender name is that the person wants.
It's compelled to speech.
And once it starts there, once it would start here, it's a big problem.
So let me go ahead.
I was going to say you can see from the reaction from the left that they either intentionally or unintentionally do not understand that key distinction that both the court and that the court made that Viva Fry just expressed.
That you hear the likes of Michael Imperioly.
saying I hear by, now that the court has sanctioned this,
I hereby refuse to allow any bigots or homophobes to watch any,
any, you know, the sopranos or anything that I ever appeared in.
And that reaction is, A, it was comical because he obviously has no ownership rights over it.
But it was from, even if he did have that right, even he did have those ownership rights,
That would be a widget because that's something that's pre-produced already
that you can't say, I'm selling this to you and not selling it to someone else.
As opposed to a three or three creative case where they are custom making
individualized speech for every person and saying the type of speech that we refuse to customize
is speech that goes against our personal beliefs and directing them that they have to that they have
to customize that speech toward a certain type of belief that they or some type of expression
that they don't want to engage in would be the government compelling speech which is obviously a violation
of first amendment
So let me just go to David or Troy,
and either one of you can jump in here.
So in the court of appeal and the two judges,
what they said is,
and because it was an issue of whether this,
basically infringes on the Colorado
Anti-Discrimination Act, the Qaeda.
And what they said in their judgment
of why they basically judged against
three or three creative was,
they made the argument and they said, as
Colorado makes clear, CADA is intended to remedy a long and individual history of discrimination
based on sexual orientation. For similar reasons, the Supreme Court in Hurley concluded that
eliminating discriminatory bias was a decidedly fatal objective in light of a free speech
challenge. So that was the reason
why the Democrat appointed
or liberal appointed judges made
the judgment against three or three creative.
What's your thoughts on that? And if you
want to just expand on that, that'd be brilliant.
Sure. You know, as I
read into this case a lot more, I mean,
do I like the ruling? No. But
like you guys say, it is protected
under free speech. So, I mean,
it sucks for that, you know, for the
LGBTQ community, but
I don't know, if you violate free speech, that's a slippery slope to, you know, more rights being taken away.
So, I mean, I hate to say it, but, you know, I do actually kind of support the ruling, even though I, you know, it sucks.
But, you know, you can't say it's supporting constitution if you don't support the Constitution.
Okay, let me go to Try, what's your thoughts on that?
Oh, yeah, that was a good point by David about the institutions.
I think the way it's being covered in the media and the way it's being reacted to has a lot to do with the recent memory of 2015 when the original the gay wedding cake court became a landmark case on the bakers not wanting to do one.
And the people that were the people trying to get married sued them.
And they went all the way to Supreme Court.
And that's where they got the Colorado Equal Rights thing.
So we have similar laws.
I don't know the laws off top of my head, but, you know, I guarantee you we have similar, you know, things in California.
And it's always been that way.
The anti-discrimination and the employment, anti-employment discrimination has been based on, you know, not discriminating against race and ethnicity.
And then sexuality.
So it sounds.
That better?
Yeah, yeah.
Okay.
So, yeah, like, Brian was saying, or David, sorry, David was saying, I don't.
I'm not for it.
I see it like a lot of liberals do as a step backward as far as, you know, people...
It's hard to make an argument for making someone, you know, compelling someone to do that.
But I think a lot of people pay attention and notice that the case was...
I mean, correct me if I'm wrong, was filed...
I guess there wasn't really a person that wanted a gay wedding website.
This was done preemptively.
Is that normal?
So let me ask you...
Let me go to
Darth.
Darth,
I mean, the issue here is, I'm from the other side,
and I'm just trying to present the other side.
I actually wrote, I did write article on this,
like basically saying that the Supreme Court should rule the way they did,
but I just want to balance it out and just give the other perspective.
So the argument is that, yeah, you're basically,
you could say you're compelling an individual in terms of his speech,
but also, sorry, Daph, I'll just mute you because it's equine and then I let's jump in.
But then also, you've got a scenario where, let's say a person comes into a shop,
You essentially...
I'm sorry, I'm losing you a little bit, Sully.
Maybe go to...
I can play devil's advocate on this if you want me to you, but...
Well, I have to go on side.
I'll come back down.
Yeah, I'm going to... I'll jump in, Suleiman.
Yeah, go ahead, Doc.
Wait, one second, Darth. One second, Darth.
What do you mean, Doc? I missed your point.
Oh, Doc's drop.
Okay, so, Darth, the question was this, and your echo is quite bad.
The argument is this.
The Supreme Court has ruled that you can't compel someone's speech...
And then you've got a scenario.
Let's say somebody was to come into a store
and then you're compelling them
to basically sell them at Mars bar or a packet of crisp.
So is that not the same?
And if it's not, what's your thoughts?
All right.
So based on what everybody else was saying,
I had a few things to comment and it addresses what you said.
So there's obviously a clear difference between the political and illegal arguments.
The reason why it goes to the Supreme Court is because it's a constitutional argument.
It's a First Amendment and compelled speech arguments,
a 14th Amendment Equal Protection Clause argument.
And it's a Civil Rights Act argument.
So it's a federal law and it's going to end up in front of the Supreme Court regardless.
We know how both sides tend to make legal arguments versus emotional arguments.
I believe Doc and Joe already commented on that.
But the easy example to demonstrate the absurdity of it is they prove the point, right?
So in the case of, all right, hey, guys, we just won.
And a baker is compelled to print a pro-gay marriage message if you go.
So now go into every religious baker you can find and make them make tons of super gay cakes
and force them and compel them to endorse that speech against their will
because we have the law behind us and we control them and make them do it.
So by making arguments like that and saying things like that, which they've done for the last six years,
They prove the point.
They've been proving the point.
And all you have to do is suggest an alternative.
How would they respond if I went into any one of the million companies that's extremely supportive of LGBTQ agenda?
And I said, all right, I need you to make a website that says trans kids aren't a front to God.
And if they refuse to do it, I would be called a bigot.
And they would be suing me.
And they would be the ones on defense.
Yet they'd...
be completely ignorant to the hypocrisy they're demonstrating.
So there's a clear difference between not serving somebody based on physical characteristics
or whatever may or may not be a protected class and compelling speech.
As Doc said, it's a compelled speech debate.
It has nothing to do with religion to an extent, as Joe said, but I also understand why Doc said it does.
It's all combined, and it all relates.
It's still a compelled speech argument at the end.
And that's the key difference.
And anybody who's suggesting that it somehow enables,
if we were talking about what Clint said and eliminating the Civil Rights Act
because you should have a freedom to associate,
then I could understand why they're making that argument.
But they're making the argument as if that was the decision, which it clearly wasn't.
I'm going to push back on that because I like to hear from some other attorneys.
I don't read this as having any real relationship to religion at all.
In theory, if the government owned Twitter or YouTube,
and the government was what was compelling me to give pro-vaccine messaging,
Nothing to do with religion.
And let's say,
let's say my objection to vaccines
is not rooted in religion.
I don't think the government
would have that right to do that.
YouTube has the ability to do that
because they're a private entity.
But I think that based on what they're saying here,
if they made me start every,
every,
a live stream that I do with a message that, you know, advocating people go get vaccinated,
that that would be compelled speech, which I think that this case,
303 creative, would say the government cannot compel me to do.
YouTube can because they're private, but I don't think the government can.
I think this case said, that's how I read this case.
I'm wondering if other attorneys disagree with that read.
I'd extend it a little bit.
Doc, yeah, yeah, add that.
But also give me, Doc, give me the other side of the argument as well,
just to balance it out of it.
Okay.
I said that I would try and do that.
It is very difficult to argue on the law that there's anything wrong with this decision.
And I think you can see the tone of the room the way it's going.
It is difficult.
But that it might perpetuate stereotypes that are offensive and potentially harmful to some.
And we're talking about gays and lesbians here.
Yeah.
Yeah, there's a potential harm that could come.
And that's one of the reasons, if not the primary reason, that Colorado passes to begin with.
So there's a social justice aspect to it.
But it's really falling down in terms, I think, both the legal argument and the public
by the compelled speech aspect of this.
And I think where they would go next to support some of the other speakers here, Darth,
we can already see the soft, sometimes not even soft push towards transgenderism.
And that's a half step from what they now would like us to refer to them as minor attracted persons.
They have their own flag.
They have proponents out there on social media, and that speech is protected.
and it's good that it is because it tells us exactly where we would go if this decision had gone the other way,
where someone's religion, and this is why religion is important in this case,
because this was a question of her religious faith.
is set out in the facts, that it's because she's a Catholic,
that she objected to this.
So the court's going to look at both the mens rea and the actus rea.
They're going to look at her intent.
What's in her mind when she refused this service?
Was it the mind of a bigot, or was it the mind of someone who truly would have been offended
had they been a true believer in that particular faith?
So I could see the court, like I get when I started before,
it's a very narrow decision, in my opinion.
and those in politics and the media that are arguing that it represents a larger crime, more bigotry.
Not even the gay and lesbian community that I've seen, the people that I know and relate to, they don't see that this way.
I think this is...
Yeah, I'm sorry.
I'm really hard for us to come up with anything other than the potential harm of bigotry toward gays and lesbians.
I can steal, I can steal man it.
Go ahead.
Go ahead, Viva.
Please do.
Please do.
The irony is I think I could probably steal man the other side better than they presented it.
One argument would be you choose to open up a business that is open to the public.
You forego certain rights that you might otherwise have had as a private citizen.
You want to reap the benefits.
of capitalism, of government authorizing you to deal with the public, well, then you don't get to say how you're going to deal with it.
That's a horrible idea. You're not going to let anyone open a business unless they waive their First Amendment rights.
Well, hold on. You kidding?
And that's what they would do. And everyone who wanted to have a business would lose their right to free speech.
David will admit it's a bad argument.
He's just saying it's the only one they have.
It would go on to pedophiles.
God knows where it would go on to.
Let Viva finish.
No, I'm not sure if you know.
I'm not sure if you know where I lean in this.
I'm only steelmanning it as best as I would if I were playing devil's advocate.
So that would be one argument.
That would be the argument that recognizes there's an impediment.
I'm sorry.
I'm sorry.
That just...
That triggered me, I probably don't worry.
That would be the argument if they were to recognize there was, in fact, a violation of First Amendment rights.
They're going to say, look, you want to serve the public.
You want to offer public accommodations in a bastardized concept of public accommodations.
That's the sacrifice you have to make.
The other steel man, which would be one to deny that it's a First Amendment violation, which I think is the tougher argument to make, is...
You don't have to believe it.
You just have to put it on a cake.
You just have to put it on a website.
If someone comes in and says,
write on my cake 2 plus 2 equals 5,
you don't have to believe it.
You serve the public.
It's not a sign that you believe it to be compelled to write it.
Those would have been the arguments I would have presented
if I were trying to steal man this position,
but I think they're untenable for obvious reasons.
One is, as Doc is saying,
you don't forego constitutional rights
just because you decide to serve the public
with expressive businesses.
And the other thing is you're not going to compel me to say something that I don't believe on the basis that you don't have to believe it just to say it, but just say it.
So that was my attempt to steal man it.
I think it's decent, but I still think those arguments fail.
Thanks for that, Viva. I do appreciate. John, what's your thoughts?
Yeah, so I think it's important to look at the history behind why we have non-discrimination laws to begin with.
Obviously, it was a sad time in this country where black Americans could not move in between one state to another and know whether it could even get a hamburger or stay overnight at a hotel.
And so we developed these non-discrimination laws to do just that, say if you're going to open your business, you have been able to be a better.
those people.
Protecting classes
or a beautiful
meaning you can't change.
I can't hear him.
John, you're breaking up.
John, you're breaking up.
I'll drop you down and bring you back up.
Go ahead, David.
While John's.
I do want to add, like I said,
can you hear me now?
Go ahead, David.
I do want to say yes.
It's a constitutional right.
And just like it is the right of the
gay couple or you know people that you know like say hey let's go take our business elsewhere
let's go let people know that they don't like you know getting people to serve their message
and that's also first amendment right too so i mean there's ways that hey just take your business
elsewhere i mean i do think it's kind of crazy on a business standpoint to say hey i don't want
to serve you because you know but um you know
First Amendment is a First Amendment.
But, you know, there are ways surrounded by boycotts or taking business elsewhere
and see how that goes, I guess.
My question is, when does it end?
At what point, where does it end?
If we can turn people away based on our own faith, where will this end?
That's not what this case says.
Sorry, go ahead, Joe.
Can I answer that?
it's not what this case says.
This case specifically says you cannot turn people away
unless it's your speech that's being compelled.
Imagine if you're an attorney
and all of a sudden you're being forced to take a case.
You offer your public services
and you say that you're willing to be hired
to handle any case at a rate of $1,000 an hour.
And all of a sudden now you're forced
someone starts to hire you
to stand up for something that you find completely repulsive,
like standing up for free speech for the KKK.
And you say, I don't want to stand up, even though I believe in free speech, I feel repulsed by the KKK.
I don't want to stand up for them.
Well, they can turn around and say that now you are, you're denying your services to them.
That's a violation of their, you know, you're discriminating against them, either because they're white or because of whatever reasons.
And imagine they can find some basis to be deemed a protective class or even, even if not.
because, you know, in theory, it could apply to even non-protective classes.
Think about how backward that would be that your speech now is going to be directed,
that you're now legally obligated to say things and advocate for things that you find utterly repulsive.
That is, that's why when the court was directing this, you know, that's why they said,
if there's any fixed star in our constitutional consolation,
It is the principle that the government may not interfere with an uninhibited marketplace of ideas.
We don't allow this.
This is something that goes back to the dawn of our country as the first most paramount right that we have because that is ultimately making a slave out of the citizen.
Can you clarify it? Why would it be any more or any less offensive to require that a business owner serve someone, like say a black business owner has a barbecue and he doesn't want to serve some clan members that come in? Why is that not any more offensive than compelling speech? It seems that you should be allowed to associate regardless.
It might not be, but the problem here is that freedom of speech and freedom of religion are fundamental rights that cannot be infringed, accepting very limited circumstances.
And these circumstances does not meet that test.
Okay.
But the other thing I would say is that what your speech is a reflection of your innermost being as to who you are.
And so co-opting that, that's why I said it's a form of slavery, where you're taking that person over and turning them into a puppet.
And now, if we can take an individual and compels speech from them,
you are literally turning them into a puppet of whoever is controlling.
And it could be the state or third party, whoever it is,
is now controlling them that for a price, they're renting their time out,
then now they are the mouthpiece and they have no mind of their own.
In fact, they're forced to say words that completely contradict the thoughts
that are going through their own mind.
That's a form of phlegatory, bro, and the conflation of that to slavery is
completely irrelevant.
Gee, like, I hate when y'all try to do this whole world,
we should allow them to speak because it becomes this term of slavery.
Something you don't even want to address as with the Constitution
that you're saying everybody in inclusive too, right?
But the only time you start to put inclusiveness now is when we're addressing these other communities.
Like, why do we have like that?
How do you, I don't understand.
Did I trigger you because I said it's a form of, you don't trigger me at all.
You get triggered when I actually call you for your bluff on the stuff you want to stand on.
Like when you say the Constitution inclusiveness, then you want to use terminology like slavery of control of people's minds.
A bunch of words out.
Something that you didn't even address.
Like the thing is you've never used the Constitution to ever address slavery when you're doing all this, but you're using it to build this PowerPoint for people who you know damn well.
You don't even care.
You're probably a confused.
You're probably a confusion.
That's why I'm trying to catch.
You're a little confused about the Constitution, because Constitution specifically does.
I'm not confused by the Constitution.
You know the thing that says, we the people that you tend to forget that we, the people, me, the black guy, that's up here.
I'm a part of that Constitution of America.
Yes, you are.
I probably have more leverage on it than you.
One second, one second, guys.
Guys, I want you to continue this discussion.
I'm going to try to meet you.
Following, it's just when you're both talk at the same time, your mic's echoing for some reason.
I'm not sure why.
Admiral, I'll finish your point, and then I'll go to following.
Go ahead, Admiral.
Yeah, I mean, this is...
Go ahead, Admiral. Ademar, is it?
Yeah, it was a delay mute.
My bad.
And like I said, I think you're a good person following programs.
Just speaking directly.
Are you able to hear me?
Am I breaking up?
I can hear.
We can hear him, so I'm man.
You can't hear him.
Okay, I need it.
I'll drop down.
Let me go to following, following.
Do you want to say your point?
The 15th Amendment pretty clearly says that we all have equal rights.
He's probably referring to the bill of rights in the original law.
Can you hear me?
What is happening?
Is everybody glished out?
Let's go to TJ.
No, I can hear him.
I can hear him, Sullivan.
Solomon, I can hear the following.
But, I mean, I'm not sure if you guys can hear me either, but just to point out.
I hear you.
Okay, but no, just to point something out that really hinges upon the following, what he's saying here, the majority opinion explicitly...
eradicate views,
right? Can anybody hear me?
agree with? We can hear you.
I can hear you, Salty, man. You can't hear anybody else, apparently.
TJ's talking right now.
So it really does
come across that
This is about ensuring that people are able to express that which they truly believe and not express that which they do not believe.
And that's the entire crux of this.
And that's an important consideration because there are state civil rights statutes, California included, that protects Creed in their statutes where that's part of their public accommodation.
Justice Gorsuch also discusses the history of public accommodation law, which used to be just like,
transportation, restaurants, things like that.
And now Colorado is defined so broadly as any outward-facing entity that sells to the public.
So artists are included custom cake makers.
clothing,
so on,
everyone is.
So in Kentucky,
we have a civil rights
statute that prevents
discrimination on the
grounds of one status
as a smoker.
As someone whose grandpa
died of lung cancer
because he smoked a lot,
I'm not exactly inclined
to...
create a message supporting Philip Morris.
I don't see how this is any different in that way, especially if I agree, I'm not going to deny you service on the grounds that you are a smoker.
What I am going to do is I'm going to deny to serve you based on you trying to tell me that you want a message in favor of smoking.
That's just an example that I can think of in Kentucky.
Okay.
If I could just add something, it's a very, very good point is that the public accommodations
has been either bastardized or broadened to the point where it no longer means what it meant.
And when Sarah, and this is not a question to pick it on Sarah whatsoever, this is a common
misdescription of the case, which is where's the end, they get to discriminate and deny
service to gays, blacks, whomever.
And not only is that specifically set out for in the decision as not being the case,
That results from this misconception or misapplication of public services or public accommodations,
which was intended to say things which are widget-type services,
you do not get to discriminate based on protected status.
Things that require some form of expression involve someone else's constitutional rights
and thereby an additional protection.
So it's not a question of denying any service to,
that would have otherwise been a standard public accommodations to anybody,
it's just the question of saying,
as you do not get to compel someone to write a certain thing,
express a certain idea.
So you can't deny them the hotel room,
but you sure say can't make the hotel write a customized message on your pillow,
we love you, and et cetera, et cetera.
So you just have to frame the actual issue and the actual judgment properly
in order to quickly set aside the hyperbolic exaggeration,
of fears that are actually unfounded in the decision and in law.
Yeah, the other thing that you can't do is TJ's example
is compare an exception based on religious-related expressive conduct.
Right. Let me go, can you hear me guys?
Yeah.
Yeah, brilliant.
Let me go to Liam.
Liam, you had some thoughts that you've messaged in,
so I'd like to hear what you've got to say about this question.
Yeah, so I think Viva said he wanted to steal man the argument.
I don't have to steal man the argument because I actually think the decision is wrong.
Justice Sotomayor's decision is exceedingly brief,
so if you'll permit me just a bit, a minute and a half,
I'll read it. It's a page and a half. It's well worth reprising rather than asking someone to steal a minute on the internet. So bear with me, 90 seconds, please. Five years ago, this court recognized the general rule.
that religious and philosophical objections to gay marriage do not allow business owners and other actors in the economy and society to deny protected persons, equal access to goods and services under a neutrally and generally accepted
applicable public accommodations law. This is citing the masterpiece
Cake Shop in Colorado's civil rights case. The court also recognized the serious
stigma that would result if purveyors of goods and services who object to gay marriage
for moral and religious reasons were allowed to put up signs saying no goods or services
will be sold if they will be used for gay marriages. Today,
This court, for the first time in its history, grants a business
open to the public a constitutional right to refuse to serve members of a protected class, specifically.
The court holds that the First Amendment exempts a website design company from a state law
that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public.
The court also holds the company has a right to post a notice that says no wedding websites will be sold if they will be used for gay marriages.
What a difference five years makes.
And not just at the court.
Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.
New norms for inclusion have been met with reactionary exclusion.
This is heartbreaking.
Sadly, it is also familiar.
When the civil rights and women's rights movements
sought equality in public life,
some public establishments refused.
Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate.
The brave justices who once sat on this court decisively rejected those claims.
Now the court faces a similar test.
A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services
based on the owner's religious beliefs that same-sex marriages are false.
Right.
The business argues, and a majority of the court agrees that because the business offers services that are customized and expressive,
this free speech clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services.
That is wrong, profoundly wrong, and I will explain.
The law in question targets conduct, not speech, for regulation,
and the act of discrimination has never constituted protected expression on the First Amendment.
Our constitution contains no right to refuse service to a disfavored group.
Therefore, I dissent.
I will just say two things, because I know I've held the mic for a second year.
First of all, Justice Sotomayor is brilliant, and I have nothing to add to what she has said.
And secondly, I will say she raises the specter.
of stare decisis that the court ought to...
No thoughts of your right here, sir?
The court ought to be bound to follow its previous decisions
unless it can show, and usually the justification
for departing with all the decisions like Dred Scott or Plessy and Ferguson...
is the idea of the living tree, that the society no longer reflects a plainly wrong and discriminatory past decision.
So when Justice Sotomayor makes reference to five years old and five years ago and the cake decision,
she is challenging the court to abide its own rule. Thank you very much.
If I may just, I'll exploit the fact that he said my name.
I just have to look up, by the way, who Liam Shaw is.
I still don't know who Liam Shaw's.
And that's in terms of the parody account because I'm looking at your account.
Sotomayor is free to make up her own facts as she did,
because the decision was not about denying goods and services
if they're going to be sold for a gay marriage.
Right.
So she can not steal man, but misrepresent or straw men what they're actually saying.
It was not a question of the sourcing, I'm not selling you Coca-Cola if you're going to use it as a gay at a gay-wet marriage.
That's not what it was.
So what you just read as eloquent and, you know, as masterful as it was as spinning a narrative is factually incorrect as to the stipulated facts.
They were not denying goods and services simply because they were going to be used for a gay marriage.
they were offering websites, which they said we will still do.
We will offer websites, just not custom websites.
The difference between saying, here's a pad of paper and here's a pad of paper with a message written on it that I don't believe it.
So Sotomayor misrepresented it, and that is effectively, I mean, she's painted the narrative so that people can flip out and say that the decision says something it doesn't.
But what you just read about Sotomayor is misrepresenting the case and misrepresenting what it means in law.
And I want to ask you, a follow-up to me, and before you respond and ask you this, she very clearly tries to distinguish and say, this is not speech, but it's actually conduct.
Would you agree that if it was clearly speech and there's a finding that it's speech, which she seems to reject, even though it's ponderous how it's not, that if this was clearly speech, that in that case, they would have a right to deny their services?
Right.
All right, so let me take this up with an example.
And let's imagine we have a wedding between two guys named Tony and Tony.
And they make a wedding cake.
And they make a website.
And the website, it says, you are invited to Tony and Tony's website service at four, dinner is at seven, dress code is black tie.
I don't think a reasonable objective person seeing that scenario would understand that invitation,
whether the website was crafted by one designer or another, to be the speech of that designer.
It is the speech of the host of the wedding who is inviting the guests of the wedding to the wedding.
I therefore interpret the text as being created by the host of the wedding.
crafting the invitation, the service that is provided by the web designer is to take the content,
and anyone like me who's ever designed a webby for another person, you take their text,
you take their content, you take their blog, you put it, okay, you spice it up, you do SEO,
you do your thing, but it's their words. You are not uttering that speech, and I don't think
it's reasonable or normal to turn it and say,
Hey man, I hear you're gay or you're supporting the gay stuff or you're part of the gay agenda now because one of your websites is holding a gay wedding where you posted a script written by gay people that there's no reason to believe you believe it or not.
So I absolutely agree with Justice Sotomoyor that this is conduct and this is not speech.
Well, Judge Cedar Black tried to make that argument in regards to conduct not being speech years, like decades ago.
He lost that argument.
If conduct is expressive, which by the way, not only to 303 creative assert that their conduct was expressive, but so did the Colorado governments.
They all conceded this was pure speech.
So there's really no argument to be made here regarding the speech stuff because frankly everyone agreed this is pure speech and
I mean, so Sotomayor, again, fabricates the facts, but she also fabricates the law on this.
And the person who pointed this one out, Justice Black's defeat on that is Michael Frazier, who's a First Amendment advocate, who also fights for LGBT causes in Kentucky.
I mean, the fact is, this is a narrow issue that Sotomayor's case would undo decades of precedent, actually, regarding expressive conduct.
So the one thing about
Sonia Sotomayor is she's a justice
of the Supreme Court of the United States and I'm not
So I am not bound
in the same way that she is and I had
this judge once I appeared before in my first
year and I appeared before I'm
and I asked for a matter to proceed on a Friday morning.
An opposing counsel said he was ready and he was ready to proceed and he wanted to go on a Friday morning.
And we had a joint position, just like what you're suggesting.
The parties are agreed. There's no argument before the court.
Judd said no. There was some third party who was in defaults, who wasn't entitled to notice, but he was self-represented.
So let's give him notice anyway and let's come back in two weeks.
The mere fact that the issue was not in dispute with the parties...
And Justice Quinn in Toronto has a great way of expressing this.
The mere fact that something isn't in dispute or that, you know, it's deemed to be admitted
does not require the court to admit that the accused is a three-headed green monster from Mars.
The court has the right to judge, and that is the fundamental aspect of being a judge.
Justice Sotomayor is not handcuffed by the parties merely because they agree to something that she disagrees with.
Well, she's not adjusted.
That's true, but it doesn't make her right.
This is not an argument about something that is 1,000% this way or that way.
When the parties have already conceded to something that could reasonably be interpreted either way,
and they've conceded to it a certain way, that's very different from the plaintiff comes from Mars.
That's not remotely the same thing, because they're all recognizing that in this particular circumstance,
the nature of the services that are being...
where they're being sought are definitely free speech.
And I noticed that you didn't answer that question I asked you,
which is, what if it were free speech?
Would you concede that they have a right to deny service?
All right.
So if the issue is speech, then the court, I think, has to respond in a uniform way.
And you have to come back and deal with the cake case and overcome stare decisis.
Now, I know that's a little bit more of an answer that you wanted a binary answer.
Hold on. That's a cop out, okay?
Someone offers me.
So I'm trying to get around my cop out by giving you a more direct answer.
And my more direct answer is, even if it was speech, I would still take the position that they're bound to make the website.
So hypothetically, I officiate weddings on the weekend.
I'm not a religious person.
I wouldn't take this position.
But I officiate weddings in a minister.
Because I officiate weddings for the public, you're going to make me officiate a gay wedding if I have a religious objection to it.
If you are...
Your answer is yeah.
If you're going to be consistent with your last position, the answer is yes.
So, Liam, I also have another hyper-ethical.
Because now you're exercising two rights.
You're not exercising only your freedom of speech.
You're also exercising your freedom of religion.
And that was the case here.
It's exactly the case here.
Well, but it wasn't the question.
Let me give a more on point one.
California has a state law and their civil rights statute that says that Creed is also a protected class.
Would you force a Jewish web developer to make a neo-Nazi wedding invite?
Yo, what the hell?
Like, the issue that you run into there, and they'll just borrow the...
Wait a minute, wait a minute, I got to get back with a following program,
because it's funny how he's, like, leveraging this, like, political point
to understand the freedom of speech, and it's like,
where was all of this energy for...
all inclusiveness. Like it's funny that you got this all inclusiveness movement for this
particular group of individuals, but it just doesn't seem to work all the way politically
around the board. That's where I have to keep pulling your card in the cap. Like how are you
going to say they deserve it before people that were here before them deserve it? Which is why we say
no, they don't deserve it at all. Like fuck all of that. Like the corruption of
What don't you want to be in?
Oh, my God.
Who is they?
Who is they?
Neo-Nazis.
Hidhar-R.
I mean, like, you know,
like I said.
No, no, no.
Dude, you other everybody.
What's this black nationalist stuff?
Let's talk about that.
You know, the fact that I have a god-giving right on the same territory and soil that you all do to announce whatever I believe in standards.
You all, who are you talking about?
Everybody that's American, right?
I think that's the majority of this space speaking on the subject.
So let's not get too triggered, triggered, right?
Because we're all citizens, right?
I just, you know, I just...
Just using transparency that you don't, because you forget there's a certain part of the totem pole that's...
You all...
Yeah.
Including myself.
Look, look.
Doc, doc, doc.
Go ahead.
The funny thing is when I say you all, I know how to be all inclusive, like based off that
constitution that says, we, the people, like, including myself.
But when you all have this dialogue, I'm talking about the men that are speaking now, it just seemed that...
We the people to certain individual speaking is a selective group and category that always seems to exclude a certain particular group of minorities here.
We speak and it is weird.
It's really weird and disingenuous.
And then it's like, oh, I want to be heard and I want to be right.
But it's like, are you really being heard and being right?
I mean, I got to pull your card, bro.
I just want to see what you're going to say.
Could I respond to TJ for a second?
Okay, so TJ, you just asked, what if a Jewish person was asked to design a website for a neo-Nazi?
Neo-Nazi is not a protected class, okay?
There's under creed or anything else, there is no protection for neo-Nazis, so they would be totally free to say, I do not wish to do this, okay?
Thank you.
This is such, she said what I was going to say. I have nothing to add.
Critical theory nonsense.
Where little elitist, like you can pick who has rights and who doesn't have rights.
This is a complete mess.
You've completely ruined, like the Asians, for example, at Harvard.
Let's go to that really quick.
That's the thing.
They're a smaller percentage of the U.S. population than African Americans.
But they are the ones who are being discriminated against by Harvard because they have
better higher comparative test scores on the average than African Americans.
And so therefore,
African Americans would let a less of a track record of academic accomplishment and test scores
were being privileged to let into Harvard University versus Asians.
They were penalizing Asians.
Nobody should, we should not be classifying people according to their personality characteristics, according to their belief systems, according to the melanin content of their skin, according to their gender. This is complete nonsense. It goes against equality. We should have individual rights. I don't understand anything.
We're swimming in this cultural Marxist ocean where we cannot even see one foot in front of our face.
Go back to James Madison Memorial Remonstrance Against Religious Assessments.
He talks about the internecine sectarian warfare on continental Europe that the founders sought to escape.
And he eloquently and brilliantly laid out why we shouldn't privilege Christians in our society versus non-Christians.
Okay, it's a very similar in some philosophical way.
I'm not getting into the legalistics that, you know, the stare decisis of all of this,
but it's an affront to equality.
We don't need to state mediating equity throughout our society.
It is a totalitarian framework that is wrought for never-ending, bickering, and, you know,
arguing with one another as this very spaces demonstrates.
Right?
everyone should be equally protected
and should have
equal opportunity according to
the merits and their hard work
and according to
their decisions
about it and is that going to be
a Rolesian paradise where the state decides
what is fair, what isn't fair? No, we
have to accept that and we need to help
each other. If you care about people who are under
privilege, you need to
have found an organization or do charity work or to help them because you have personal compassion for those people.
We cannot have the state mediating all of our social relations.
It's just going to be a never-ending nightmare in my humble opinion.
So, Kyle, fundamentally what you're saying is the Civil Rights Act of 1964 is something you disagree with vehemently.
But that, of course, there never should have been.
I understand, never should have had civil rights to begin with.
Because that is in fact what that does as well as the state.
Excuse me.
Well, I sure devastated the black as the state anti-discrimination act.
One of their time.
Sorry, guys, everybody.
About four people speak and let Tira finish your point.
Go ahead, Tira.
Sorry.
Okay.
I'm.
Go ahead, teacher, there's a glitch when you muse someone.
They're able to talk for that.
Okay, I can talk now.
Sorry, I was trying.
Kyle, you raised a whole bunch of issues that have, of course,
nothing to do with this case, nor even with the Nazi example.
Basically, you railed against the Civil Rights Act in any form.
Oh, so, free of all conscience to the right.
Am I talking?
I doubt, I defer to your brilliant.
Suleiman, am I talking or not?
Maybe he can't hear me.
Yeah, Kyle.
So basically you're raising all these sort of straw men to get all upset about civil rights, etc.
But that was not really the issue or the question.
T.J. raised a stupid example that has nothing to do with the issue to gin people up and to rile people up.
Now, I will say one thing about this case, and this is not really on the merits per se.
This was a fake case.
There was no business.
There was no wedding website.
In fact, I seriously doubt this woman ever plans to do a business, okay?
This is something the Supreme Court rarely, if ever does,
which is reach out to take a case in which the plaintiff literally has no standing
because there's no harm.
So basically the plaintiff made up this whole thing.
Oh, I'm going to be so upset and it's going to be so bad if I can't do my wedding website.
And honestly, the state of Colorado got outsmarted here.
They made all...
You're entirely wrong.
She asked for a declaratory judgment.
She asked for a declaratory judgment, Tara.
You know that.
Doc.
No, it's not.
Doc.
Well, doctors left you to finish.
Okay, this was the Alliance Defending Freedom, basically wanted to raise a case, and there will be a million more of these cases.
We are not done.
We are only at the beginning of this because, and they outsmarted.
They outsmarted Colorado by all these stipulations.
The Colorado made that they should never have made to saying it's expressive content.
All the things that they said.
really were, many of them were issues of facts that nobody should have stipulated to,
but somehow they were, as I said, outsmarted, and that's why the case is before the Supreme Court,
or was before the Supreme Court, which, as I said, could have thrown this out still and said no real standing,
but they didn't, thank you.
It's amazing they were outsmarted by agreeing to facts.
I mean, that's such a wonderfully demeaning thing to suggest
that the state of Colorado didn't know what it was conceding to when it stipulated,
that they understood it was expressive content.
I mean, it's one way of getting out of the legal consequences of agreeing to fact.
And when you have a problem with having agreed to facts at the end of the day, you're not after truth.
You're after being victorious and being right despite the truth.
The fact that a court might have said they had no standing, testing laws is a darn good thing to do before problems arise.
And the fact that the courts have used standing as a pretext to avoid hearing cases that they ought to hear in the first place doesn't make it a good practice in the first place.
Tara just deceptively derailed the conversation away from the law.
because this case started as a request for a declaratory judgment.
This woman had a history of an artist,
wanted to go into the wedding website business,
but being in Colorado because of the background with the cake cases
and this particular law wanted the declaratory judgment from the court
that if she denied service based on her religious faith
and based on her freedom of speech,
Would she deny this in this particular circumstance?
And that's how this case proceeded.
Standing was never an issue.
And it should have been,
it should have been.
That's the point.
Normally, people don't walk.
She should not have been able to test whether her rights were subject to existing law.
So I want to respond because my,
like my name was brought up and said that my hypothetical was stupid.
So let's.
Talk about standing one. Colorado demonstrated willingness, ability, and history of enforcing this statute.
So that's part one. And under Susan B. Anthony Uless v. Dryhouse, that's enough to confer standing.
Supreme Court acknowledged that as well to quote Justice Gorsuch.
Colorado has a history of past enforcement against nearly identical conduct that anyone in the state may file a complaint against Ms. Smith
and initiate a potentially burdensome administrative hearing process.
that Colorado has declined to disavow future enforcement proceedings against her.
I mean, I also think of Steffle v. Thompson, 1974.
It is not necessary that petitioner first exposed himself to actual arrest or prosecution
to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.
Now, on to my Nazi issue.
That's absolutely relevant because no one in 303 creative disputed the constitutionality of state public accommodations law.
So a state public accommodations law that protects creed, if you side with the majority, a state public accommodations law that protects creed would absolutely be relevant about serving a neo-Nazi.
We could also do religion as well because the KKK is a white Anglo-Saxon.
Protestant group.
So would we force anyone else to service a KKK meeting and send a message in support of
the KKK?
I doubt it.
So it's absolutely compelled speech.
It's absolutely relevant.
It is not a stupid one.
Pre-enforcement challenges go back for decades in First Amendment law.
In fact, pre-enforcement challenges are one of the only ways to do it.
Tier, I haven't heard you complain about the pre-enforcement challenge where a Tennessee federal
court struck down their public drag show ban.
Right.
But it's the same exact type of standing that allow for the Supreme Court to strike this down.
So it just seems like people resort to standing when they've lost on the merits.
No, that is not true.
I agree.
So let's go a few more places here.
Number one, I don't believe that Naziism is a creed that would be protected.
You obviously disagree.
I'm not seeing that.
California statute says that it does not differentiate.
Excuse me.
I think if we actually had that case, we would be hard pressed for anybody to defend it.
Number two, Gorsuch in fact said no one raised the standing issue.
right that's not true there's one sentence in there saying nobody had raised it at with that court okay he
didn't go into it but he made one little comment about how no one had actually raised it okay and number
three bogus bogus bogus case this woman this was a setup you know it was a setup alliance
defending freedom has 79 million dollars in
funding.
The people that went after her were set up.
They went after her.
For the same reason, they went after the cake baker twice.
Nobody went after her.
And stop, nobody went after her.
She went after the law because she was, no, excuse me.
Organizations are targeting this sort of freedom of religion.
Freedom of expression.
That's exactly the same people that ran the cake scam.
We did not have this business.
I understand why they did it.
I'm an agnostic.
I don't pray to any God, okay?
And I've always supported gay marriage and equal rights
because it's an equal protection issue for me.
But you can't avoid the fact there's supremacy here in law on free speech
and supremacy here on the law fundamentally on the right of religion.
And this case grew on both those sources.
Tell me about where in the right decision.
Religion.
Can I read the standing court?
In the fact, she said that this violated her freedom of religion.
She said that, but the courts was talking about free expression, right?
Court was talking about free expression, yes.
We're talking about both.
This case on page sweet says to secure relief, Ms. Smith first had to establish her standing to sue.
That required her to show, quote, a credible threat existed that Colorado would in fact seek to compel speech from her that she did not wish to produce and they cite Susan B. Anthony List to be a dryhouse, which is from 2014.
So I'm not sure why it is that you're saying that she didn't have standing when the court addressed that issue out of the gate.
Right.
Courts said that the courts below had determined that, correct?
They said they would not.
No, no, no.
No, I just read to you directly from the decision.
I'm reading to you from page three of decision.
Open up decision.
Look at page three and you'll see in the top paragraph there.
It says to secure relief Ms. Smith first had to establish her standing to sue that required her to show, quote, a credible threats existed.
Okay.
that Colorado would in fact seek to compel speech from her
that she did not wish to produce.
And they cite the Susan B. Anthony List v. Dryhouse
573 US 149.
That's the standard that that is the standard
that she needed to establish in order to establish standing.
So I'm not sure why it is that you think
that standing was a moot issue before this
court. They're simply saying this is ready to...
There is a sentence in there, and I can't look at the case now. I'm outside.
Cannot check computers or anything right now.
But there is a sentence in there in which Gorsuch said no one had raised it in this court.
Okay?
I'll find it for you.
Thank you. It's there.
Okay. So you can deny that it's there, but it's there.
Thank you, you.
You're right. It was not contested the Supreme Court, but it was contested in the Supreme Court.
That was one of the issues appealed on the 10th Circuit.
And the Tenth Circuit reversed the district court on standing, but they sided with Colorado on the merits.
And on the standing issue, the 10th Circuit must have made it quite conclusive because the only thing that was discussed in SCOTUS was the actual merits of it because Colorado decided they have standing.
If Colorado wanted a challenge they could have, but frankly, I think they would have had to call for overturning Susan B. Anthony, let's be dryhouse.
which I don't think anyone really wants to do that because if that was the case, like I mentioned, the Tennessee Drag Show Band, for which no one was arrested, cited, fined, prosecuted, or anything...
Well, that would have been, that also wouldn't have been able to go through.
So it just seems like people are only talking about standing here because they disagree with the mayor.
Now, I'm actually talking about it because I don't think she has a real actual business or a credible claim here.
If we look and we all know that this has come out recently, it appears that the one, and this is not probative,
but the one person who apparently wrote to her website or her whatever she has,
saying, do you do gay marriages, was a guy, was a fake.
Okay, it was a fake.
I don't know how it happened.
I am not going to blame her or her lawyers,
but what I'm going to say is the day after they filed the lawsuit,
all of a sudden out of nowhere came this request, okay,
from a guy who it turns out.
So the-
Standing is decided at the time of filing.
Fine, but the day after, and something that was mentioned in the lawsuit itself at various places,
although not before the Supreme Court as far as I know.
I found the conclusive paragraph.
Thank you.
Thank you.
All right.
With everyone's permission, I'm on what appears to be...
Okay, I'm at the decision, and I'm going to piss you both off because you're both right and you're both wrong.
Ultimately, the district court ruled against Ms. Smith...
So did the Tenth Circuit.
For its part, the Tenth Circuit held that Ms. Smith had standing to sue,
meaning it was at issue in the court below, and it was contested and was decided by the court.
And that court's judgment, she had established a credible threat that if she followed through on her plans to offer a wedding website services, Colorado will invoke CADA.
to force her to create speech she does not believe or endorse.
The court pointed to the fact that, and I quote,
Colorado has a history of past enforcement against nearly identical conduct,
as in Masterpiece Cake Shop, unquote.
Okay.
that anyone in the state may file a complaint against Ms. Smith
and initiate a potentially burdensome administrative hearing process,
and that Colorado has declined to disavow future enforcement proceeding against her.
Before us, no party challenges these conclusions.
So you're both partially right in the sense that it was not a live issue before the Supreme Court.
you're both wrong because the reason it is not an issue before the supreme courts
is that the parties arguing the final appeal did not raise it.
Liam,
it was raised in the court.
Okay.
You're not,
let's be clear.
Hold on a second.
Liam,
you're not being diplomatic by saying you're both right and you're both wrong.
They're not both right and they're both wrong.
Joe is right.
Tira is wrong because the parties agreed to standing after the lower courts had come to the
determination of it.
And it's pretty clear from the decision.
But to harp on the standing issue,
as if to say...
The outcome might have been right, but we shouldn't have gotten there because they should never have had standing in the first place.
It's procedural cowardice to evade the substance of the law.
And I just want to come back to the one thing before, because you still haven't answered it.
Forget the TJ's example, which I think is flawed, and we don't need to argue from imperfect analogies when we have the perfect example.
If we assume and take for granted, it is bona fide expressive conduct.
Do you then agree that they can't be compelled to do it?
Forget whether or not it's in mixed or they're selling widgets.
If we concede that it is expressive conduct, do you then concede that this is the right decision?
Well, I mean, that's a big if, and I certainly don't concede that.
But if you say it's speech, then I would say if the content of that speech violates a sincerely held under the Loyola test religious expression, then it would not be consistent with the First Amendment.
But I also say that your hypothetical is unreasonable.
You say it's unreasonable.
Let's use a real life statement where they were just chanting, we're here, we're queer,
and we're coming for your children.
You know, the thing that went viral on social media a few days ago with the LGBTQ community screaming,
we're here, we're queer, we're coming for your children.
Publicly, mass media picked it up and it's going viral.
So do we not consider that explicit expressions?
And we don't think that this decision now is it actually...
No, pedophilia is not protected speech, pal.
Are you serious?
It's a part of the LGBTQ.
I do apologize.
Are you serious?
I'm not hearing you at all.
Pedophilia is not part of the freedom to express themselves.
We're talking about the freedom to express yourself freely and open.
I'll go down on that.
First Amendment.
And we're forgetting of the egregious statements, all of the homophobia that runs around from this community be placed on every single individual.
This is what I mean by y'all are lawyers.
and y'all don't really see this shit as a problem.
It's okay that they overturned it.
Now the people that are upset
are the ones who do the most violations
and saying that we're the people that don't have
any consideration from others.
You're coming from the black guy
that gets the most censorship in silence
in all the fucking world, right?
So here I am watching another community.
No, I don't believe in your systematic racism.
I think it's a grip.
That's what I think.
I don't want to talk over you, man.
But I think,
I don't think you're a victim.
No, I'm not a victim at all.
You're a young man.
You're obviously strong.
You're tough on your voice.
No one's oppressing you.
Like, Doc, look, it's not about being a victim when I can actually tell you what's going on from the statements of professions that aren't even willing to speak on it.
Like, it sounds like y'all are more afraid of what happens when you tell the truth than I am, right?
And I've served the country.
So...
Looks like we all put a little bit at risk here, a little bit at stake.
And we're trying to sit here and find a reason.
Because when a man says, but after anything in a statement, he doesn't believe what he just said.
He's gone with the facts after the butt.
So to me, it doesn't sound like Liam knows how to pick.
Well, when you're talking about the law, you have to talk about the rule and the exceptions.
Right.
And you have to weigh those exceptions and the rights violated if you violate those exceptions.
The exception.
That's what we're talking about here.
The rule and the exception.
It's not a bud, okay?
It's the exception to the rule.
I've always been considered the exception in this quote unquote, we the people as constitution.
And what I'm watching now is that sheer ignorance move fast forward to the year
2023, 2024, where the same people who didn't know how to make a decision 50, 60 years ago,
64, whatever fucking year are now...
Do you believe in protecting the freedom of religion?
Do you believe in protecting religious expressions?
Absolutely, I do, because that seems to me...
That's what's happened to you.
Yeah, well, so what are we going to...
That's the right.
The fundamental right.
Not all rights are fundamental.
Not all victims are equal.
In this country, freedom of religion is protected.
Even silly, stupid freedom of religion, right?
The test to be what it is and is not a religion is set very, very low.
The protection for freedom of religion is there, but the freedom of speech isn't.
Like, you know, everybody is allowed to go out.
It is.
There is freedom of speech in this country.
I'm sorry.
You cannot compel me to say something I don't believe in.
Can I just ask, I mean, Admiral, first of all, I remain this sincerely.
Everybody who has served deserves a great deal of respect for that.
I'm going to ask you this.
I don't know what your position is.
I'm listening to you.
And I mean, there's a lot of, you're trying to bridge it into different discussions.
Do you agree or disagree with this decision?
No, I agree 100% with the decision.
I don't think, I think these people definitely are at a point where somebody got to start taking
action to make sure that these folks can actually...
have some maturity about the way they're carrying themselves.
They don't even have integrity and foundation solidarity between the organization.
They're trying to decide if they're including petos or not.
That's a problem.
And when it's going public to the point that it's going into the court systems where they're going to have to.
It's a problem that it's even being considered.
You're talking about statutory rape.
right right that right right right right to look at all right
so i'm okay so 20 year old guys guys you're going you're going off the truck it's not thing let me go to
uh leum liam what's your thoughts on this shit you just as ever said and and just sort of get away from
some of the legal discourse because i want to be inclusive for you know what i presume is a mostly lay audience um
judges since the time of Solomon have tried to compromise to divide the child in half and reach some court, some kind of accommodation. And the interesting thing about this injunction, and let's remember this is injunctive relief being sought. And generally speaking, the standard of proof to achieve an injunction is higher than the standard to just win a trial. But
There's no compromise here.
There's no inquiry into what is being asked.
Is she being asked to write gay marriage is beautiful, I believe, in gay marriage?
Is she being asked to say, the wedding is on Thursday, and if you received an invitation, please show up at 4 o'clock.
There seems to be no attempt in the judgment to even interrogate a set of facts under which...
you know, a couple, whether same sex or not, could inoffensively just say, like, hey,
here's our ready-wayed mem site, like, would you post it?
And to distinguish that, to Doc's point, because Doc is correct that when you make a rule,
you have to set out its exceptions.
Like, we can all imagine a circumstance where the speech that would be made out by the website
design could be horrific, and we don't need to go.
It's just easy to imagine that.
But it's also easy to imagine that even if someone came in that the proprietor hated,
that they despised who belonged to a protected group,
wanted a totally ordinary bread and butter, cookie cutter, boilerplate websites.
And there's no space for that in the judgments.
It's one-sided, and it gives this overwhelming injunction against the entire state
for this woman to refuse all gay couples all the time.
No matter what, even if their website is identical in every way, or doesn't even mention or show pictures that they are of the same sex.
You see, Liam, what you just did, you know what, if I can, I've been sitting here very politely, okay?
But I want to point out two things, the two issues that Tira and Liam have been bringing up are standing and whether or not this is free speech.
And you're basically accusing the state of Colorado of doing is basically missing the football when they took their swing at it and failing to properly raise these two issues.
A, that they let it go after the 10th Circuit made its decision and said there's no standing.
And B, in conceding to the fact that this was, in fact, an exercise of free speech.
And what I'll politely point out to both of you is the state of Colorado
took a lot closer look at the underlying facts that either than either of you did,
almost certainly.
So they knew what they were dealing with here.
They were busting their tail to try and win this,
finding it all the way up through to the Supreme Court
and busting their tail to try and make sure that they could,
that they would be able to stand up for the CAA.
And in the end, they still lost.
So if they're busting their tail,
and they recognize, hey, we don't have a winning issue here on standing.
Hey, any cursory look at what this business is proposing doing is definitely free speech.
It's bad faith for us to argue it.
And now you're coming here with less knowledge of the facts
and assuming that they did a poor job in putting forward those issues.
What you just said, Liam, is a really interesting thing.
You said we can easily imagine speech, which is like cookie cutter language that would...
that would not be really any different from one,
from one wedding to another,
whether it was for a heterosexual couple
or a homosexual couple.
And what I would respectfully submit to you
is that arguably that that cookie cutter,
that's a widget.
If this was a widget, in that case, under this very decision,
and they decide, hey, we're not going to sell that widget to a gay couple.
That would be something that they could help punishable for.
But that's not what this is.
You're basically pretending that the facts are, not what the facts are.
That's why when you're stolen Sotomayor.
I'm saying Sotomayor, I look at her like she's a clown.
I think that she's incompetent because she's gaslighting about what the actual facts of this case are
after they've been reviewed by both sides.
Joe, I'll just read. I don't know what page it's on because I let me see here.
Page 32 of the Sotomayor is dissenting.
The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples.
She will just not sell websites for same-sex weddings.
Apparently a gay or lesbian couple might buy a wedding website for their straight friends.
This logic would be amusing if it were not so embarrassing.
I suppose that it goes on here a little bit.
Then it says Smith answers that she will sell other websites for gay or lesbian clients,
recognizing she will sell a widget, but she won't sell a custom website.
So it is, Liam, just outright misrepresenting the facts.
And they recognize it even in the dissent that Smith says,
I will provide a widget website.
I just won't provide a custom website.
But what I love here, we touched on it earlier,
I'll harp on it a little bit,
is that all of the sudden,
the left that wants to discriminate
based on protected status in the Harvard decision,
that rails against Justice Thomas, who happens to be a black justice,
who rendered a decision against affirmative action.
They want to claim the right to discriminate on the basis of a protected status in the Harvard decision,
while then blasting the right purportedly for now sanctioning discrimination, in this case,
in which there is actually no discrimination.
I hate to be partisan, you know, sound partisan politics about this,
The left does not care about justice.
They don't care about the facts.
It's ideological domination.
And they don't even have consistency
within their application of the law
in that they want to discriminate in one case
and then complain about fabricated discrimination in a
So isn't it interesting that Diva, you have now raised the claim, I guess, that both Liam and I, I suppose, is the two who spoke out on this, are making a, we are the left, right?
We are the people.
I have never actually spoken on this stage about the affirmative action ruling.
So I really do think that the fact that you are othering us or you're making us, we are this people.
I'm talking about the judges, not you.
That's what you said.
The judges. Oh, I see. So you're not talking about us. Let me just, I will say one thing about Sotomayor. I really have rejected, I have seen so many comments saying she's unqualified, etc. Sotomayor is great.
brilliant. You can disagree with this. You can say that she is misrepresenting the facts.
But for people to sit here and say she's unqualified, et cetera, and I've heard this a lot recently,
and if anyone on stage has said that, please don't say that, okay? Please just don't go there.
Because we're talking about legal decisions. People disagree. Just the fact that Gorsuch has said,
oh, she's misrepresented the facts doesn't mean that she's misrepresenting the facts. I'm going to agree with Liam a little bit.
I mean, I actually think this decision was...
once we get past standing and the fact that I think it was bogus,
I understand this decision.
I'm not even...
And I basically accept these decisions
because it's the Supreme Court
and they have the right to make these decisions.
And so I'm not sitting here fighting against it.
What I am going to say, though, is that I just...
I think this decision is going to lead to some really much harder cases.
And I don't think, as Liam said, the court actually looked at whether there were other less offensive things to do.
For example, what if she had said on every website, I have to put a pick.
I put something saying, Jesus believes marriage is going to a man and a woman or whatever God she prays to.
I don't really know.
Okay? What if she had said that? So if you offer the same things to everybody, then it's fine.
Even if it's your objective view about the world or your personal view about the world, you can do that.
This was not considered. In most of these cases, the courts do look for some accommodations.
And this goes to my theory here, which is that this court is looking for these sort of cases to make statements.
It is their right to do so, but it is an incredibly activist court. Thank you.
But they don't.
They don't do at the Supreme Court level, not an injunctive relief, because they don't have the capability or desire to manage the various different what-ifs, the carving by hair by here in different circumstances.
In affirmative action, we were told that we can't, you know, 25 years.
Five years was a dead set date.
Come on.
Oh, come on.
Oh, come on.
There are limits to everything.
No, Doc.
And this is where it's been reached.
It's been reached here because on the other side of the equation, it's the freedom of speech and freedom of religion.
It's the end of the story.
Those are superior rights in our law and our Constitution.
Right.
Let me go to Brandon.
Brandon, you got your hands up.
I'll look at your thoughts.
Okay.
Hey, I'm loving hearing all these incredibly passionate heterosexual people, some on the borderline of hysteria over this issue.
Look, I have to say I'm a gay person.
I fully support the Supreme Court's decision.
It's the right decision.
I'm absolutely against compelling speech.
But I think a lot of us could sit here and just kind of repeat the same talking points about compelled speech and the risks of discrimination and things like that.
But I'd rather try to focus on some things that haven't been said yet, which are,
In today's day and age, I'm really curious where people are afraid that this is going to go.
Because I feel like we've established really clearly, I as a gay man, if I went into a wedding baker's cake shop and they had off the counter cakes there for purchase, no one would stop me from walking in.
and purchasing a wedding cake that's readily available to the public.
The only thing that they would stop me from doing, of course,
is customizing the cake to say something that they don't want me to say.
But the vast majority of people in this country now support gay rights, support gay marriage.
The idea that this is even going to come up very often for any gay couple is so minuscule.
It's going to be such a rare exception.
The idea that you can't simply hang up the phone and call another cake baker or call another DJ or call another whatever.
And then you get on Yelp.
and you get on social media and you tell everyone,
hey, I just went to such-and-such bakery.
They told me they're not going to bake cakes for gay people,
just wanted to let, or gay weddings.
Just wanted to let you guys know I have that experience.
Anybody who doesn't want to patronize the store doesn't have to.
Anybody who wants to can.
But like I just like I can't even believe that this is blown into this state of hysteria.
When we're talking about something that's going to be so inconsequential and happens so rarely and so limited in its scope of what it could actually be.
I mean, when you think of the various services attached to any wedding.
We're talking about flowers, cake, DJ, what?
Food, cater, I don't know.
But this is a very, very limited.
Sorry, I'm in New York.
Something's happening.
I guess that's my point.
Like, I don't understand how this has gotten so blown out of proportion
when it's such a limited thing that's going to have almost no effect on anybody.
Right, let me go to Mays.
Mays, let's look to hear your thoughts.
Well, so I was actually going to say the same thing that Brandon said.
So, I mean, not to like really repeat it, but just the, how often is this going to come up?
And I actually agree with Tara on something, which is, which is very interesting, Tara.
But this, you know, the person that they put in the case, it was like fake documents.
Like that person literally...
is heterosexual and did not, you know,
request any type of website.
and this is also a team that was,
who helped overturn Roe versus Wade.
I think that's interesting.
I mean,
it's kind of like this ping ponging between,
you know,
You know, and the court is being used, our resources are being used to make decisions on these cases.
But ultimately, the outcome is correct.
I mean, people, like, should be able to do, I mean, if I was gay, I wouldn't want anybody that is totally against it to even make a website for me.
I mean, that's just, I guess, common sense.
That's kind of, that's what I was going to say.
So I don't want to repeat everything that Brandon said, but I agree with him 100%.
Sorry, and if I, just really quickly, because there was like a bunch of fire trucks going by, so I just wrapped up.
Just a final point.
I just, I'm a little exhausted with all of these people speaking on my behalf, saying that, you know, oh, the LGBT community, this is so terrible for us.
This is so awful for us.
When I as a gay person in America in the year 2023 have to weigh what is most threatening to me, having my First Amendment rights encroached upon and being told that I am now forced to engage in compelled speech at times that I don't want to or that I may have to simply hang up the phone and call a different cake baker if somebody says that they don't want to bake my cake, like it's a no-brainer.
This is like the idea that anybody's doing me or my community a huge favor by turning this into a thing where we may have to actually encroach upon the First Amendment because there are gay or lesbian people out there who are so butt hurt by the fact that they might have to call a different vendor for their wedding is it's absurd.
Can I try another hypothetical here?
And I don't think this would happen, but let's assume for a second.
Let's say a school hires a photographer to take photos, take class day photos, athletic events, etc.
And the photographer shows up and then says, oh, wait, you know, I really don't believe that blacks and white should be in school together.
So I, you know, I'd like to take them separately, okay, and or anything like that.
Or C's, let's just say they're doing a sports team.
And then says, well, you know, I think that person looks like a transgender person.
I'm not going to take these pictures.
That's okay?
I'm asking.
I'm really, in that case, they've already accepted the job.
They've already accepted the job.
You can't accept the job and then say you're not going to do the job.
I just feel like if they're going to give up the money, like it is a very competitive world, okay?
I mean, there's plenty of people that would do the job for that money and not complain about it.
They would do it the way the customer wants it done.
And, I mean, that's what, like, leaving it up to, I think, the world to decide how many people are going to give up the money just because they believe that strongly that they shouldn't go to school together.
So that hypothetical, I mean, I don't know.
And then the fire the stupid photographer to begin with.
So there's that.
But your analogy, that would be analogous to a photographer agreeing to do a gay wedding, showing up for the wedding and then saying, I'm not going to take your pictures because you're gay.
Once you've signed the contract and agreed to do the job, you don't get to show up and then start saying what you're not going to do when you get there.
You've already agreed to do it.
But on the other hand, what Tara would support is, I think, what's already happened, like Columbia law, where they have separate graduation, separate housing for black students, so they have a safe space.
Somehow that sort of discrimination is okay, and that just shows how far the left will take this if we let them loose on our First Amendment.
Thank you.
You know, that's an interesting example, Doc, and affinity housing has been around for quite some time.
I think a lot of these cases that we're discussing in affirmative action, the wedding website stuff,
are going to have implications that people don't understand.
For example, let's just go to affirmative action for one second.
The government has set up a number of programs which give funding to, let's say, minority PhD students
to try and encourage them to be in certain fields.
Are those suspect? Are those right? Are those going to be sort of gotten rid of because they are using race inappropriately?
I mean, there's so much here that can happen. And I'm, like I said, this case, I understand. I, you know, and so I'm not, I'm not out here sort of saying what a horrible case it is. I do think they should have considered less restrictive stuff. But let's leave it. But other cases are,
I see this, I hate the term slippery slope, you know, lawyers use it all the time. I know probably people are tired of it, but, but this, these cases are going to have such. Well, these cases will have an impact and the alliance defending freedom is a very well-funded group that is going to be out there with other plaintiffs. They already probably are. Thanks.
But, Tira, that was kind of my point.
Like, I don't see what the slippery slope is.
Like, to me, this feels very, very restricted in the scope of what it could possibly encompass because of the nature of it.
Like, I don't see where the slippery slope is with it.
Well, you're going to be asked questions about what is expressive speech?
I mean, honestly, I'm sorry about this, but I've had two kids do wedding websites.
The idea of these expressive wedding websites, please, you go to the notch, you get a website.
You're putting too narrow a focus on it.
No, no, I know.
I'm just, I'm laughing about the facts in many ways because I think it's a little silly.
Yes.
The case history for expressive conduct is very broad.
This is not tailored toward gays or lesbians.
It's not.
This is protective of religious expression and freedom of expression.
It's okay to burn the flag.
It's okay to burn your draft card.
It's okay to a fuck you, a governor, whoever, when you walk into a courtroom.
These various means of expressive criminal...
As long as it's not considered an imminent threat, correct?
Yes.
These expressions of their...
are expressive conduct.
It's conduct that equates to speech.
And in this case, the court, for whatever reason, I think in their wisdom, said that
I'm not going to endorse gay marriage because my religion tells me that's the sin.
and I don't want to sin against my religion.
I think it's, frankly, I'm an agnostic.
I don't get it, but I believe in protecting these rights.
Can I just say, too, with the case,
because it keeps getting brought up the thing about the web designer
and how it's sort of being suggested at times
that that's not exactly an expressive service.
And I fully disagree with that.
If I were a web designer, even if somebody came to me
with all the copy pre-written of what they wanted on the website,
the...
They're still counting on me to choose the placement, the colors, the fonts, the design, the outlook.
There's a lot of creative input that a designer is going to have, not just copying and pasting black text on a white page.
And even that, somebody should not be forced to do if they don't want to.
But, you know, if somebody came to me and I'll leave religion out of it, if I were a web designer and somebody said, I hate America, I hate this country, I want to see America burn to the ground.
I want you to help me design a website that's all about how I want to take America down.
I don't want to help that person in their messaging.
I don't want to help them choose colors.
I don't want to help them choose fonts.
I don't want to help them choose a layout.
And I should never be forced to have to do that.
And why would you be?
What is their protected status that you would not be allowed to say that?
Why would you be, Brandon?
Well, what I'm saying is that if the policy is that you're not allowed to discriminate against any customers who come in there.
No, it's not customers.
It's religion, gender, it's depending on the nature of the state anti-discrimination law.
But it's generally gender, sexuality, religion, couple more, but not just anyone walking and saying, I hate America.
That would not.
that's not a protected class.
Tira, that is Creed, and at least in Delaware and California, to my knowledge, that would be protected class.
Can you send me the cases, T.J., because I haven't seen you.
I can send you the statutes, absolutely.
No, no, no, no, no, not statute.
Send me a case that says that either a Nazi as a protected creed or a, as you suggested before,
or that someone walking in saying, I just don't like America as a protected creed.
I think it's common sense that it's a creed.
Well, they've been given the right to March, so Nazis still have a right of free speech because that, again, is expressive conduct, parading.
So, yeah, there is case law that supports it.
It's reprehensible, but there it is.
That's how far freedom speech rights go in this country because they're fundamental.
And without that, you don't have any of the rights.
They'll take them all away.
But they're not, that's the exact opposite of what's going on here.
They're, they're in individuals or groups are allowed to express opinions that many of us might find horrific.
Why?
The exact opposite is going on here, which is that people are, not because they might find them horrific.
I'm sorry, I do.
Because they're protected by the freedom of religion.
No, no, no.
What that people, you want to equate faith as horrific.
And that's the marker at the left.
Did you listen to what I just said?
Just like the cake case was.
Doc, what I just said was that had nothing to do with a case like this. That is not a creed. That is a different issue completely. And I'm sure you know that. I'm asking, TJ, to provide me with cases.
I'm a horrible conduct. You used the hypothetical of Nazis to compare the people of faith.
You started out on this ridiculous hypothetical. Stop, stop. You were making this up. You were making this up to
Only Suleiman can smash.
Only Suleyman can smash.
You know that.
Okay, so let's not go there.
Look, you're making this.
You're making this off.
I just pause a second.
If you before I wants it back in, he has to get back in.
If you could just like, I think he was going back in.
Yeah, yeah, guys.
Maybe I have too many questions.
many questions right guys way too many people there's like five people talking at the same time let teira finish a point and then we'll go to tj go ahead tier i'm just well i wanted to hear a question to better point when she's finished all right brandon i'm sorry brandon i'll hear the question and then she can finish your point and then she can answer your question go ahead brandon
I couldn't unmute, sorry.
Yes, it's some glitch where basically when you press it, it basically continues going for like another, like, anyway, go ahead.
Yeah, Tira, I'm sorry, I didn't mean to cut you off.
I just wanted to ask for clarification because you keep bringing up protected classes.
And I'm legitimately asking because I may be wrong.
But I don't feel, it's not my understanding that protected classes have anything to do with this particular decision.
Isn't this just a matter of expressive goods and services?
No, this is a decision based upon the Colorado anti-discrimination law, which says it public accommodation or whatever it says can't discriminate on the basis of race, sex, etc.
Okay?
This case was brought under that statute.
Yeah, but the point being, the point being that free speech is so powerful that it even
overcomes what's perceived as an attack on a protected class, even though it's really not.
Tira, sorry, I glitched out earlier and I was trying to get back in.
Tira, you gave an interesting example, and it's one that I've been thinking of as well,
along the same lines.
A photographer says, I don't want to take pictures of blacks and whites together or whatever.
this is where as the cliche goes,
you know,
every,
every case is fact dependent,
where one would say,
on the one hand,
is the business,
is it an expressive business or is it a widget business?
Is it providing photo booths for events?
And you say,
I provide photo booths for events.
I come and install them.
They take pictures.
But I'm not providing those for a gay wedding or a bar mitzvah or whatever.
Verses,
an expressive photographer who is expressing himself and expressing his mind or, you know, providing some degree of expression in the case.
So even with that hypothetical, the question would come down to are they denying providing a widget?
based on a protected status, whatever, or are they refusing to provide an expressive service because of their deeply held beliefs?
And so it would be fact-dependent.
But in this case, if everybody can somewhat agree that designing a website carries within a certain degree of creative expression or implied expression, especially if it bears your signature, this website was developed by X and Y and Z, then it's there.
So every case will be determined on its own merits.
And there could be situations in which, you know, it's a photographic booth for an event.
You can't say no to the gaze if you're going to provide it there, but you can say I will not provide my photographic services as a photographer.
That would be different facts.
Well, that's correct. I was actually referring to the second, okay, to the, you know, photographer taking photos themselves, not the photo booth, which...
I just, well, I don't really know if photographers actually provide those and also take pictures.
I honestly don't know how it works.
And you're right.
Fact specific.
Liam, go ahead.
I listen to Brandon very carefully and he's not wrong that the facts in the case may suggest sort of
an outlandish and marginal
set of facts that might not
actually apply in the real world.
That has never discouraged appellate courts before.
All of the law of personal injury
and negligence in tort law
is based on a woman in Scotland
who while on a date with her fiancé
had a bad ginger beer float and puked.
Law of consideration is based on someone who peeled labels off a bottle and used them to enter a contest.
Appellate courts regularly take small cases based on infinitesimal amounts of money or outlandish irregular situations
and use them to make laws that apply to everyone, and that's good.
because the courts are designed to apply to everyone, rich or poor, greater, small, many or few,
or sometimes the rights of even one person.
So I hear Brendan's criticism and he's not wrong, but that's also a feature and not a bug of how the law works.
Let me go to Kyle and then TJ.
Hi, I just had a quick question for Tira.
How is freedom of speech or freedom of conscience contingent upon being a member of protected class?
I mean, the U.S. Constitution is the Supreme Law of the land over CADA or the Colorado anti-discrimination law.
So don't you think the Supreme Court had the standing and the merit of enforcing the First Amendment rights of this web designer?
I mean, since it follows that the First Amendment, I don't see any protected class.
provisions of the First Amendment, and maybe you can just inform you about the linkage there.
Well, what I'm, I guess, look, and I'm sorry, I'm in a store, so I can't really talk for this second,
and I don't know if you can hear me, but what I was trying to say was that no, very few of the
rights enumerated in the Constitution, you know, freedom of expression, freedom, etc., are unlimited,
right? Usually courts apply tests as to whether we can
you know, what is going to happen in a specific case here.
What we have is the freedom of expression abutting or coming up against anti-discrimination.
Courts are able to do whatever they want.
You know, they can basically make a new standard.
They can make no standard as they did in the gun law stuff, which they basically stopped a standard in many ways.
So I'm saying they had the opportunity to do what they wanted here, and they did what they wanted here.
Thanks.
Just to clarify, because I think I understand the other underlying part of that question is,
if this case were just about someone comes in and says,
make me a cake that says I like to kill puppies,
and the owner could refuse to do that because...
They can refuse to do it and they're not violating the rights of a protected class.
Where this became an issue is someone came in and said,
make me a cake or make me a website that says I'm getting,
I'm having a homosexual marriage.
And they said, well, I don't want to do that.
And it is a protected class.
And that's where DACA or CADA came into.
effect, that is the distinction here.
It's not just someone saying, I refuse to print an offensive message, and the person
that they're refusing it on behalf of is not what we call a protected class, even if you
disagree with that concept.
In this case, it was make a message for a group that is a protected class, and someone
said, no, I'm not doing it.
If it were, I like to kill puppies, their refusal would have been non-issue because
they said it as relates to a protected class, it became an issue of civil rights, if that
makes it clearer.
Tira, I'd like to offer too that when we're talking, you had mentioned the slippery slope earlier and I said I didn't really see what it was.
There have been a few things that I've considered.
Now, I want to preface this by saying clearly,
these are not things I'm worried about or concerned about,
and they're extremely first world problems
and not really even problems at all.
But I just think it's interesting food for thought
when you're talking about what is or isn't an expressive service
and how far this could go.
Like, if I had a fiancé, who was a man,
and we were preparing for our wedding,
and we went into a jewelry store to get our wedding rings,
And the jeweler was a very staunch Christian who didn't want to, who didn't believe in same-sex marriages. Could my husband and or my fiance and I go and purchase rings? Would we at that point just simply be availing ourselves of a good at the person's store? If so, what about sizing our rings?
Would he have the right to refuse sizing our rings?
Or would he have, like, that to me is an interesting conversation about how far this could go.
But again, even if I ended up in such a situation in this day and age,
there are so many options available to same-sex couples
when the majority of people in this country support our right to marry,
we're never going to have to go without rings or cake or any other services or goods for our weddings.
Sure. You can always ride the bus as long as you're willing to sit on the seats at the back of the bus.
See, but that's where you're comparing a cake to literally the indignity of not being able to ride public transportation or drink from the same water fountain or swim in the same pool.
Brandon.
If I may, he's, and with respect, first of all, Brendan, how's it going?
Confounding the true public accommodations with the misapplication of public accommodations.
This is not a question of public transport.
It's a question of, I'd not call it luxuries, but the benefit of expressive businesses
that are open to the public that have now been confounded with public accommodations.
This.
misapprehension really clarifies exactly where the issue is.
It's not a question of denying public transport, sit in the back of the bus.
It's, I have a business, it's an expressive business.
I don't want to say everything, but I want to offer my services with the right to exercise my constitutional rights while being a business open to the public.
public. But Brendan uses, I think
the correct word, I think Brandon is quite correct when he
used the word indignity. And Rosa Parks
was not denied public
transportation. She was allowed
to ride the bus.
But she suffered the indignity of
being told that she must sit at the back
of the bus. I'm going to respectfully suggest
to you,
that a gay couple that says would you make me a website that says tony and tony's wedding you
that was separate but equal it's not the same thing they're distinct parts of the bus label parts
of the bus tony duck just please like i'm not taking a long time um it's it's an indignity to treat
people differently and refuse to make a simple website that says tony and tony's wedding
the what you know, Saturday 4 o'clock, indignity is the correct word and Brendan hit the nail on the head.
Okay, but hold on a second, but an indignity, even if we are prepared to concede that it's an indignity.
Let's just, we, we concede that.
It's an indignity on a public accommodation versus an indignity on an expressive...
business and those are two different indignities even if we can see that one is a bona fide
public accommodation public service and the other one is a business open to the public that nonetheless
itself benefits from constitutional protection and here's what i'll suggest you is if i was going to
visit an indignity to you on the street and i'll just use a hypothetical i see you on the street corner and i say
your father is a hamster and your mother reeks of elderberries okay that is an indignity
i have insulted you that is a different proposition from you coming into my business and me
saying no i refuse to serve you because your father is a hamster and your mother reeks of
elderberries let me propose another another hypothetical and support of lian's position what
if you have a grossly and severely obese woman
who is suing an airline,
the indignity of having to purchase one ticket for one seat
and not be given a larger seat, a larger aisle,
or multiple seats for the same price,
because she's indignant.
And this is a real case if you hadn't heard about it.
But Liam, it's only an indignity if the person chooses to interpret it as an indignity.
Because having somebody tell you, you can't sit with the rest of the people on the bus or drink from the same water fountain or whatever because you're less than everybody else.
is, I would say, inarguably an indignity.
If I walked into a bakery and I said,
your cupcakes look amazing.
I'd like a dozen cupcakes, please.
And the person said to me,
I would never sell cupcakes to a gay person get out of my store.
That is an indignity.
If I went to the same baker and I said,
hey, your cakes look amazing.
I'm getting married.
I'd like to talk to you about it.
And here's my husband or my fiancee.
And the person said to me, I'm really sorry due to my religious beliefs.
We actually don't participate in same-sex marriages.
I have a very biblical view of marriage.
I would not perceive that to be an indignity.
I'd see it as an inconvenience and a little bit annoying.
And I'd be like, well, I just wasted my time driving over to your stupid store to hear this.
And I'm going to go on Yelp and tell people about that.
But I wouldn't go home feeling less than about myself or like I wasn't allowed to be a part of society or something like that.
I can push back for you. Liam, Liam, I can push back for you against what Brandon just said.
Because I do think that I can recognize how that could be real, that is an indignity.
It feels like an injustice.
It feels like it's wrong.
And I can push back in your favor while still saying that this decision is 100% correct.
Because the reason, the way we deal with indignities, the way the law or different legislatures try to deal with stopping these indignities from happening is that they pass public accommodations law.
and that public commendations law, this is addressed squarely on page four of this, of this,
in the syllabus section of the decision here, where they recognize that under Colorado's logic,
the government may compel anyone who speaks for pay on a given topic to accept all commissions
on the same topic, no matter the message, if,
if the topic somehow implicates a customer's statutorily protected trait.
Taken seriously, that principle would allow the government to force all manner of artists,
speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.
The court's precedents recognize the First Amendment tolerates
None of that.
And then it goes through public accommodations,
and it says we recognize the validity of public accommodations,
which are designed to protect the dignity of minorities,
like Jews, blacks, gays, et cetera.
But public accommodations act must give...
way to the constitution they're not constitutional they have to ultimately yield to the constitution
so when a public commendations act is running a foul of the constitution it cannot survive and
and bulldozed past it in order to steal from the public their first amendment or other or other
basic civil rights
And by the way, when Brendan's example, like selling cupcakes and refusing because you're gay, that's refusing to sell the widget.
Cupcakes with a specific message, that's where you get into the expressive nature of the business.
And by the way, just to say, thank you all that this has been fantastic.
If I duck out, it will be for the rest of the night.
But thank you all.
These are wonderful spaces, Mario, and everybody involved.
Thank you.
But it's been great.
Can I, I just want to talk about the indignity argument because I think that when you talk about the Rosa Parks situation, that's a public transport that is so intertwined with government. In fact, it wasn't government stuff. I mean, looking at what we have right now with the TANK, which is what I use, Transit Authority of Northern Kentucky, that's using a government gun to discriminate against people. We've just rejected that in students for Fair Admission v. Harvard slash UNC. And I mean, there's,
repeated case law rejecting discrimination from the government.
However, we're talking about instead using a government gun to compel speech out of someone to send a message with which they don't agree.
That, in my view, is the greatest indignity of it.
I mean, just talking about the broadest stuff about it is like one of the points that Liam mentions is.
in this is that like it's just a website it's tony and tony's wedding well the thing is is that
for a person with miss smith's beliefs here to state to the wedding of tony and tony
is to fundamentally call it a wedding,
which is a sacred sacrament in the Catholic Church.
It's a religious matter.
It is part of her sincerely held beliefs
that that is between a man and a woman.
So to force her to send that message,
I don't see how people don't view this
as flat out compelled speech,
the same way that compelling her to condone violence would be
or anything along those lines.
This is just a matter of all...
And frankly, the following program put it,
perfectly. Any public accommodation law must comply with the
Constitution. You can't use a public accommodation law to just run afoul of the
Constitution further. Justice Gorsuch also talks about how public
accommodation has gone way beyond its original scope, but he points out
states have a right to do that. They can expand the definition of what a
public accommodation is. What they can't do is they can't violate the
Constitution through that. That's just something I think is worth
considering.
Kyle, go ahead.
No, I'd say this has been a fascinating conversation.
It's been a lot of lightning back and forth on each side of this.
And just the one thing that I, the takeaway about this that I get is that the expressive services
Nobody has a right to not have their feelings hurt.
And I think that's where the, where things get muddied for the broader public.
So I think that, you know, separating the public accommodations versus the expressive services,
I don't think any of us who make our living with words here, which is the lawyers, the journalists,
anybody else who works in that industry wants to be compelled to put their name, their signature on views that they don't believe.
So I think that ultimately the Supreme Court ruled rightly on this one.
That doesn't mean I support discrimination against gays in the least.
I don't support any ignorant views.
I think we should all have equal rights and, and,
One of the most important ones, if not the most important one,
is just that we keep our freedom of conscience and freedom of speech,
regardless of your personal identity.
So thank all of you for the great conversation.
Brilliant. So first of all, I want to thank everybody. We are going to be wrapping up.
So I do want to thank everybody for joining the space. We've had a very good,
decent conversation from all sides. So I really appreciate the conversation.
Sarah, have you got any last thoughts before we wrap up?
I'm good, Salamon. Thank you. And thank you, Mario, for allowing me to cover.
Sarah apparently has no thoughts at all.
Maybe the real public accommodation was the friends we made along the way.
Oh, God.
I'll just, I'll end with a dab of cynicism.
If you all want to see where this goes.
