Andrew Siedel isn't purporting to accurately describe the current state of constitutional law in the United States. He's making an argument that it should be different. There's nothing wrong with doing that, but it should be acknowledged for what it is.
Does Seidel cite a case that supports the distinction you are trying to draw?
Start with the simplest case: Res Ipsa, attorney at law. Res is a sole practioner with no employees. The only person that can speak is Res. The "business" is something Res does to earn a living. Are you aware of any case that says Res is stripped of his free speech rights under the Constitution when he is speaking in the context of his business? Or that he is stripped of some of his rights? Why should he lose some or all of his free speech rights when he speaks in the context of his business. And how are you deal with the fact that speech doesn't come divided into neat little categories like "personal" and "business?" The cases that make it to the higher levels of the court system typically involved mixed speech that can't be neatly categorized.
If Res takes on a partner, why should that fact, in and of itself, deprive him of some or all of his free speech rights? Or if he hires a bookkeeper, the same question.
I don't think you can find a case that supports giving a person lesser free speech rights when they are speaking for the business.
Now, there is black letter constitutional law that says purely commercial speech receives a lower level of protection than political or religious speech. That's why, for example, the government can require and regulate the content of a stock prospectus or financial reports or disclosures in the sale of real property. But the key word in that line of cases is "purely." And it's a distinction that is based on the content of the speech -- not on whether the person is speaking as a person or speaking as a business.
There are also laws that create legally fictitious entities for the purpose of limiting liability or tax policy. But, the use of those entities does not have any sort of necessary effect on free speech. Legislators can and do pick and choose which attributes to give such entities. Going back to Res Ipsa, attorney at law, if he chose to be Res Ipsa, PLLC, the business is still just Res Ipsa. The only person who can speak is Res Ipsa. And the law does not say that if Res Ipsa uses one of those liability limitation or tax devices that he somehow loses his constitutional rights to free speech.
Free speech is a complex area of constitutional law, with all kinds of nuance and distinction. There is plenty of room to say that it should be something different than it is. But that shouldn't be confused with how it currently stands.
Click. I'm starting to see what you are getting at now. I think you are right, for the most part Seidel is arguing what should be and not necessarily what is, although I'd contend in many measures he's also describing what is. And I suppose in my pig-headedness I'm left agreeing with him. Thanks for taking my push back in the spirit it was intended. I do think this represents an interesting case.
You’re welcome. I think we have similar styles, so it’s easy to to get your intent.
by the way, other than a firm belief that this Court will use a neat axe when only a scalpel is required, I’m not exactly sure how I would decide this case. I would almost certainly confine it to cases in which the nature of the product or service is nearly indistinguishable from the identity of members of a protected class.
he/him
“I prefer peace. But if trouble must come, let it come in my time so that my children can live in peace.” — Thomas Paine
I’d like to take the opportunity {to express gratitude} for the effort and forbearance that Res has put into this thread. He’s really helping me understand this a lot better than I would otherwise have grasped.
Thank you Res.
Last edited by IHAQ on Wed Dec 07, 2022 8:32 pm, edited 1 time in total.
I’d like to take the opportunity for the effort and forbearance that Res has put into this thread. He’s really helping me understand this a lot better than I would otherwise have grasped.
Moksha asked earlier about what would happen if the shoe was on the other foot…
A restaurant in Richmond last week canceled a reservation for a private event being held by a conservative Christian organization, citing the group’s opposition to same-sex marriage and abortion rights.
In her blog post, Cobb likened the restaurant’s move to establishments that refused to serve Black customers in the 1950s and ’60s, and she decried what she called a “double standard” by liberals who think a Colorado baker should not be allowed to refuse to make a wedding cake for a same-sex couple.
I wonder what Cobb makes of the 303 Creative case…
I thought this bit was interesting, related to our discussion:
Legal experts say neither of those are apt analogies. While it’s illegal to discriminate against someone because of their race or religion, the restaurant’s refusal had to do with the group’s actions, said Elizabeth Sepper, a professor at the University of Texas. “It’s about the overall positions and policies the group has taken — it’s not about Christian vs. non-Christian,” she said. According to the American Civil Liberties Union, D.C., Seattle and the Virgin Islands specifically protect people from being refused service because of their political affiliation or ideology.
She's never discriminate against someone based on a protected status. But I can come up with request that she might refuse, even though she would be perfectly capable of painting the subject in her style, such as someone who wanted to pose as a missionary while holding the Book of Mormon. But what if she had refused to paint a gay or lesbian couple in a loving embrace, or someone in drag? (She wouldn't, but what if? I mean, we could come up with extreme examples, such as a Westboro Baptist leader holding a "God hates **** sign.) Should she be forced to create that product and then sign her name to it?
I think that is the rub, some of the justices want, and for others, to still be honorable people who disagree due to their religious beliefs about LGBTQ+ people. Being a Mormon missionary is not a protected class, but being gay is. They want to believe that being gay is a choice or preference, or changeable, instead of an inherent characteristic much like race. They don't want it to be a protected class. All of the hypotheticals that involve non-protected classes are not the apt. In this case to make it apt your wife is fine painting a white missionary, but not a black one cause she believes that the priesthood ban is right, and the black elder shouldn't even be holding the priesthood, let alone going on a mission. That would not be allowed and illegal discrimination.
I’d like to take the opportunity for the effort and forbearance that Res has put into this thread. He’s really helping me understand this a lot better than I would otherwise have grasped.
Thank you Res.
Same!
You're very welcome.
he/him
“I prefer peace. But if trouble must come, let it come in my time so that my children can live in peace.” — Thomas Paine
Moksha asked earlier about what would happen if the shoe was on the other foot…
A restaurant in Richmond last week canceled a reservation for a private event being held by a conservative Christian organization, citing the group’s opposition to same-sex marriage and abortion rights.
In her blog post, Cobb likened the restaurant’s move to establishments that refused to serve Black customers in the 1950s and ’60s, and she decried what she called a “double standard” by liberals who think a Colorado baker should not be allowed to refuse to make a wedding cake for a same-sex couple.
I wonder what Cobb makes of the 303 Creative case…
I thought this bit was interesting, related to our discussion:
Legal experts say neither of those are apt analogies. While it’s illegal to discriminate against someone because of their race or religion, the restaurant’s refusal had to do with the group’s actions, said Elizabeth Sepper, a professor at the University of Texas. “It’s about the overall positions and policies the group has taken — it’s not about Christian vs. non-Christian,” she said. According to the American Civil Liberties Union, D.C., Seattle and the Virgin Islands specifically protect people from being refused service because of their political affiliation or ideology.
Good catch, IHAQ. It is interesting related to our discussion. In doing reading in connection with this thread, I noticed a couple of state laws that prohibit discrimination based on political affiliation.
he/him
“I prefer peace. But if trouble must come, let it come in my time so that my children can live in peace.” — Thomas Paine
