Open thread: free speech v private companies

February 21, 2016 • 12:34 pm

by Grania Spingies

This is an issue that I go back and forth on. I don’t think I really know what the right answer is. Pretty much everybody here supports the idea of free expression, some of us quite vehemently. On the other hand, many of us are not disquieted by anti-discrimination laws that insist that business-owners can be penalised to refusing service on the basis of race, ethnicity, gender and sexual orientation.

I know that I don’t want to live in a society that looks like this:

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But anti-discrimination laws are at odds with free speech, and therein lies the problem.

LGBT and liberal activist Peter Tatchell recently wrote that he had changed his mind about the Belfast bakery that refused to supply a cake to a same-sex couple because it espoused views they disagreed with. He argues:

This finding of political discrimination against Lee sets a worrying precedent. Northern Ireland’s laws against discrimination on the grounds of political opinion were framed in the context of decades of conflict. They were designed to heal the sectarian divide by preventing the denial of jobs, housing and services to people because of their politics. There was never an intention that this law should compel people to promote political ideas with which they disagreed.

In Georgia USA, a company has taken a stand on the new First Amendment Defense Act (FADA), HB 757 passed there which provides special protections for people claiming that their religion prohibits them from performing certain acts. As a result telecom company 373K has announced it will relocate out of state. It is an unfortunate and costly way to respond to the law, but is probably the correct way to show lack of support for legislation like this, although of course it can do nothing on the ground to protect individual citizens from bearing the brunt of bigoted discrimination.

There is a sign of hope there too. The New Civil Rights Movement reports:

Across Georgia, literally hundreds of top corporations that do business in the state are doing so, having signed the Georgia Prospers pledge.

“We believe that in order for Georgia businesses to compete for top talent,” the pledge states in part, “we must have workplaces and communities that are diverse and welcoming for all people, no matter one’s race, sex, color, national origin, ethnicity, religion, age, disability, sexual orientation, or gender identity.”

Ken White points out at Popehat, the same applies to Twitter. No-one has a right to a platform on Twitter, although he concedes that Twitter does not actually promote free expression anyway, which is a point that Jerry has written about as well recently.

You think that Twitter has a civic or moral obligation to uphold “values of free speech”? Fine. How do you distinguish that from people arguing that Twitter has a moral and civic obligation to defend people from offense?

As I said at the beginning, I don’t really know what the answer is. I am for freedom of expression; but I genuinely fear societies that go as far as endorsing bigotry through legislation. Perhaps the only solution is for people to apply pressure to companies and politicians to impress upon them that tolerance should be valued far more than anything else.




80 thoughts on “Open thread: free speech v private companies

  1. The thing that is important to me is, first, equal treatment for everyone under the law. If a man and a woman are entitled to certain legal protections if they marry, then so are two men or two women. I have never been able to understand the harm might do.

    The other thing is that, within certain limits, freedom of religion is also very important. There has to be limits because we do not want to permit things that are abhorrent in the name of religion. Child sacrifice is a good, but extreme, example.

    The other thing that I think is important, is that once a law has been enacted, contested, and upheld, it must be obeyed. Once same sex marriage is legal, discrimination should not be tolerated. If the owners of that bakery don’t want to deal with same sex couples, they are not forced to do so. They can close their business if obeying the law is that intolerable.

    1. The other thing is that, within certain limits, freedom of religion is also very important.

      Actually, I don’t agree. Or rather, religious freedom should be upheld only to the extent that it is already entailed by freedom of expression.

      Thus, “religious freedom” should not extend to acts, only to opinions. Religious opinions should not be treated as more important than other opinions, and the religious should not be granted the privilege of more licence to disregard laws than anyone else.

      1. What about acts that endanger others, such as vaccine refusal? To me, that needs to be one of the limits. Basically, your right to swing your fist ends at the tip of my nose.

      2. Religious freedom should definitely extend to acts, so long as those acts don’t violate people’s rights, because religion entails not only beliefs but actions. For example, praying is an action. People should have the right to pray, so long as it doesn’t violate the Establishment Clause of the Constitution. Etc.

      3. Religious freedom means that as I live my life I can choose to not eat certain foods such as pork or shrimp, but I can’t force other people to not eat them. I can choose to partner with whomever I please, but I can’t make other people choose the same way I do. If my gods tell me to wear purple on Thursdays, I want to be able to wear purple on Thursdays, but that doesn’t mean I don’t have to wait on people in my store who are wearing black on Thursday. Freedom of religion only applies to each individual, it does not include any right to interfere or insult or ignore people who are following another religion (like none, right?)

    2. Do these particular bakeries go out of their way to identify the couple in question? Do they bloody ask if the couple is straight or gay?

      If a given bakery also happens to be an eatery (surely those exist), do they also question the status of two friends/acquaintances of the same sex merely walking in and purchasing and sitting down at the tables provided to consume their comestibles?

      1. The bakery in question is claiming that they did not refuse to serve the couple, they refused to decorate a cake in a way that endorsed same sex marriage. They are claiming that it was the message that they had a problem with rather than the people.

        Of course, that is splitting hairs in a rather disingenuous way; but it is a distinction that may have legal merit.


        1. I don’t agree that it’s splitting hairs in a disingenuous way (or in any way). Refusing to decorate a cake with a particular message is quite different from refusing someone a service because of their sexuality, and we have no evidence that they would have refused service on the grounds that the customers were gay.

          Along with freedom to express our views we should have the right not to express views that we disagree with (or, more precisely, in this case, to facilitate the expression of views that we disagree with).

          We wouldn’t expect a Jewish bakery to decorate a cake with a message in support of Hamas, or an African American bakery to decorate one in support of the KKK. So we shouldn’t expect a Christian bakery to decorate a cake with a message in support of a lifestyle that(some Christians at least) see as incompatible with their religion.

          1. It is actually splitting hairs unless your definition is far different from mine. Staying with the Bakery business, if you walk into any bakery and simply ask for a cake or point one out that is sitting there for sale, you should be able to buy it regardless of who you are – jewish, African American, Morman, whatever. The spiting hair part is when you want the cake decorated in a certain way to depict a gay message or a KKK message or support of ISIS. At this point the cake baker can probably refuse.

            1. If you think that’s “splitting hairs,” I think your definition is probably different than most peoples. I certainly do not consider that splitting hairs. I think that’s a hugely important distinction.

            2. Right now AIUI the law allows the shopowner to create reasonable non-content restrictions, but not ideological content ones. So, for example, a shopowner is within their rights to say “I don’t write swear words on my cakes.” However, if they write ‘f*ck the police’ on a cake, then they can’t refuse to write ‘f*ck the Pope’ on a different cake for a different client. With gay marriage cakes, a shopowner could certainly say “I don’t write messages, you have to find someone else to do that,” but they very likely could not say “I will write Congrats Adam and Eve, but I will not write Congrats Adam and Steve.” Your shop either writes congats messages, or it doesn’t.

              The same is true for political speech on cakes too. You can refuse to write any political message or any negative political message (“I hate [X]”, for any X), but you cannot as a service-provider write “I hate X” messages for liberal X’s but not conservative X’s, or vice versa.

        2. “The bakery in question is claiming that they did not refuse to serve the couple, they refused to decorate a cake in a way that endorsed same sex marriage. They are claiming that it was the message that they had a problem with rather than the people.”

          I also disagree that that is splitting hairs. It’s the difference between an author selling a book a customer, vs. having to write a book for them even if the author vehemently disagrees with the topic.

          Imagine if you were in the US and started Grania Blogging Services, and were not allowed to refuse to write anti-gay posts for the Mormon Church, because to do so would be discrimination?

          1. Let me see…you say selling a book to someone vs writing a book for someone is the same comparison as making a cake and decorating one?

            Along the same lines as selling cars verses making a car?

            1. No.

              Not unless the car’s design has some specific speech component, for example, something explicitly and specifically for or against gay marriage, or pro or anti-racism.

            2. You are obliged to sell them any car in your range, in whatever colours are available.

              But there is absolutely no requirement for you to paint one pink just because the customer demands it.

              (Assuming, of course, that pink isn’t in your colour range and you don’t offer a ‘any-colour-you-like’ option)


    3. I have yet to see a convincing legal difference between a Kosher deli and a ‘Christian’ bakery.

      The deli will refuse to make a ham sandwich because of religious reasons, the bakery will not make a gay wedding cake for religious reasons.

      Neither directly discriminates. The deli will sell a roast beef sandwich to a gentile, the bakery will sell donuts to a gay person.

      In both cases, they choose not to offer a particular product. I don’t see why the state should get involved (there is no constitutional right to a wedding cake or a ham sandwich).

      If a bakery can be sued for failing to sell a particular theme of cake, can a bookstore be sued for failing to carry religious books? or gay books? or Spanish language books? Are these not parallel forms of discrimination?

      1. The difference is that the Kosher deli does not make ham sandwiches for any customers: a Jew, a Muslim, gay or straight customer all get the same menu and service.
        But the bakery singles out a specific group of customers and refuses a service to them that it makes available to other customers.

        1. “he difference is that the Kosher deli does not make ham sandwiches for any customers: a Jew, a Muslim, gay or straight customer all get the same menu and service.
          But the bakery singles out a specific group of customers and refuses a service to them that it makes available to other customers. “

          That is only true if the bakery refuses to sell regular menu, or stock, items to “a Jew, a Muslim, gay or straight customer”. The similarity would be that the Jewish deli would refuse to custom create a ham and cheese sandwich and the anti-gay bakery would refuse to make a cake with with two grooms, neither of which are part of their standard offerings. Both companies would consider those “Treif”.

          1. “…makes cake with two grooms…”

            No, I don’t think that’s an accurate portrayal of the bakeries’ actions. They’re not refusing to “make a cake with two grooms”, that is, a substantially different cake from cakes they would sell to other couples; they are simply refusing to sell wedding cakes to gay couples.

            1. “No, I don’t think that’s an accurate portrayal of the bakeries’ actions. They’re not refusing to “make a cake with two grooms”, that is, a substantially different cake from cakes they would sell to other couples; they are simply refusing to sell wedding cakes to gay couples.”

              My example was a hypothetical meant to compare and contrast. The two grooms example was a deliberate inclusion meant to aid in creating a line between serving people stock items and creating a cake with specific expression against the creator’s religious beliefs.

      2. I would say that it depends on the nature of the business. If a deli identifies itself as a kosher deli, one should not expect to get a BLT there. If a bookstore identifies itself as a Christian bookstore, one should not expect to find copies of Maxim or the Sports Illustrated swimsuit issue on their shelves. However, if a business is going to observe religious-based rules on what it will or will not sell of whom it will or will not serve, it should identify itself as such. It would be one thing for “Smith’s Christian Pharmacy” to refuse to carry contraceptives*, but quite another for Pharmacist Smith to work at Walgreen’s and refuse to deal with a product that’s in the store’s inventory.

        *Note: I am not a pharmacist, nor do I know any pharmacists, so I have no idea whether a drug store is legally required to be able fill any prescription a customer might bring in. If there is such a regulation, my pharmacy example is no good.

          1. I haven’t researched the topic, and really don’t have the time for it, but do recall seeing a couple of news stories in the past few years about individual pharmacists refusing to dispense contraceptives (leaving the task to their less devout co-workers), but I’m not sure that any of those went to court.

            At one Walgreen’s where I used to get prescriptions years ago, framed profiles of each of their RPh’s hung on the wall in the waiting area, and in one of them, the employee claimed to be “…doing my best to be a good Christian pharmacist.” I always had to restrain the urge to ask him how a “Christian” pharmacist differed from any other kind, but I didn’t want to have someone who was preparing my medications have any reason to think I was hostile. I’m pretty sure it meant that if he objected to a particular treatment the customer shouldn’t be allowed to get it.

      3. “I have yet to see a convincing legal difference between a Kosher deli and a ‘Christian’ bakery. ”

        If history is any guide, the “Christian” bakery is probably a crappy one. People that seek reflected glory seldom have any glory of their own.

      4. I think this is a situation where there isn’t a perfect and eternal set of criteria you can use.

        The laws we currently have in most U.S. states I think are actually quite good. They say that businesses which serve the general public can’t discriminate against certain protected classes of people which are specifically identified and change over time.

        In your example, Kosher Delis clearly aren’t discriminating against any protected class of people, while the bakery is. To put it another way, there is no societal harm coming from the Deli not serving certain meats, but there is harm coming from the bakery not serving gay couples.

      5. “I have yet to see a convincing legal difference between a Kosher deli and a ‘Christian’ bakery.

        The deli will refuse to make a ham sandwich because of religious reasons, the bakery will not make a gay wedding cake for religious reasons.”

        Yes, but while there are religious reasons for both designations, I see two important ones. The first (and more important) is that in the kosher instance, there is a significant difference in the food and how it is prepared and handled (the same is true for halal). The second is that every kosher deli, restaurant or food store I have ever been in is open about their religious affiliation; “Christian” bakeries don’t operate as nonsecular businesses until it’s time to discriminate.

        Kosher food is also of generally better than average quality because of the religious rules involved in its preparation and handling. In the olden days when airlines served approximations of real meals, you could get better food by asking for kosher.

    4. And yet, in a way, religious child sacrifice is currently condoned in the U.S., in the form of religious exemptions for vaccines and from legal requirements to seek legitimate medical treatment for treatable illnesses.

      1. Three states do not allow non-medical exemptions. They are California, beginning in September, and, incredibly, West Virginia and Missippi.

  2. First of all, you must admit that most of this is caused by the religious intolerant. In the U.S. it is generally a perversion of religious freedom by the religious. Their version of religious freedom would have to say that their religion gives them the right to discriminate over anything and anyone that gets in the way of their religion. But it does not work that way. A better phasing for their weak minds would be, you can practice any religion you want, but you cannot force that religion or it’s beliefs on anyone else. Law always trumps your religious right when the two clash.

    The FADA law in Georgia is a good example of perverted religion and it steps right in the middle of established law on discrimination. Because of the perverted people of Georgia it may take a long time to drag this through the courts and resolve it. Companies don’t have time so they pack up and get out.

    It all seems terribly complicated and nasty but that is simple people and religion.

  3. I disagree with Mitt Romney’s assertion that “corporations are people, my friend.” Or more broadly, that businesses enjoy the same freedoms that the Constitution extends to “the people.” My position is that businesses, in return for the privilege of doing business, should be made to adhere to strict regulations that preserve fairness and equality.

    Human rights first, businesses second.

  4. “But anti-discrimination laws are at odds with free speech, and therein lies the problem.”

    There is a difference between free speech and actions. People can express any political or social opinion they want, but their opinions cannot be justified to discriminate against people anyway they please in violation of the law. Libertarians and the faithful may feel that such discrimination is justified according to their lights. But, especially in a society as diverse as the United States, such laws are necessary. Otherwise, in effect, you are inviting anarchy or in the case of the faithful, the privileging of religious beliefs.

    In regard to the question of the cake decoration, the issue of whether the refusal of the baker to decorate the cake in a certain way is speech (allowed) or action (not allowed) would ultimately need to be decided by legislation and the courts. No matter what the result may be a lot of people will be upset. But, that is always the case when tough decisions are made in a democratic society.

    1. That’s certainly the take I have. A business that denies a customer service based on discriminatory reasons is taking action. This isn’t speech anymore than sacrificing virgins to a volcano is speech.

      I think a business can be compelled not to discriminate, but if they want to talk about their various bigoted beliefs on their own time, then there shouldn’t be threat of Government penalty. Likewise, I don’t like the fact that many businesses will fire employees for legal speech that “threatens the reputation of the company.” We can all just as easily lose our freedom of expression when the people providing the jobs threaten our livelihood.

  5. In the US, businesses classed as “public accommodations” may not discriminate against customers based on protected classes.

    Without such laws, the South in the US would still be filled with overtly racist businesses, who would be allowed to refuse service to black customers, or make blacks sit in the back of buses.

    Where I have some trouble finding a distinguishing bright line for, though, i small businesses (often individuals) that involve creative expression, such as wedding photographers, cake designers, printers, writers, etc., where the output of the business is an individuals speech. Would I be ok with the tables being turned, and a liberal owner made to take wedding photos at a Christian cult compound, or create child bride cakes, or wedding announcements for a ceremony that denigrates gays? Should creatives be forced to say things they don’t agree with?

    I want businesses to treat people equally, but I also don’t necessarily want there to be laws that make them have to create birthday cakes for Adolf Hitler (this really happened – a racist named his kid that). I don’t really know how that can happen, because there isn’t an objective bright line that distinguishes what I find socially repellent and what other people find socially repellent. And I don’t know if it would even be fair for there to be one.

    1. I should add, don’t think that any public accommodation should be able to refuse to sell pre-made goods to any protected classes. My concerns are about speech, things custom made to order incorporating the speech of the customer. Who’s speech should be protected under the right to free speech, the customer’s, or the creative’s? There is a conflict, and all rights are a balancing act of competing interests.

  6. I’m strongly on the side of freedom of speech. However that does raise problems, and the bakery issue is one.

    In a big city, it’s easy enough to boycott a bakery that won’t bake wedding cakes for same-sex couples. They don’t like SSM – well eff them. However, what if they’re the only good bakery, or all bakeries in the area were anti-SSM?

    Personally I think businesses should have to follow the law, whatever the personal beliefs of their owners. We can imagine plenty of other scenarios. If you have a heart attack in the store where the owner believes only homeopathic remedies are acceptable, are they required to phone an ambulance? If you’ve been a lifelong strict libertarian, are you required to pay taxes? If you sincerely belive women should stay home, closeted in a harem, should you be required to serve them?

    A lot of people think the bakery example is no big deal – it doesn’t effect many people and there are other bakeries. They frame the argument as being anti-religion rather than anti-gay. To me, that’s like saying women have to put up with sexual harassment because that’s how men are. For a start, it’s not how men are, it’s how people in power are – women in power do the same thing, though it’s less common. In the bakery example, the business is in power and is using their position to attempt to control a portion of the population, disenfranchise them, and as an excuse to treat them badly.

    There have to be rules to govern society, which include rules protecting those in a minority or who otherwise may not be in a position to stand up for themselves. Therefore, a business should not be allowed to discriminate based on the personal beliefs of its owners or employees.

    1. I like that reasoning because it also shoots the hell out of the Hobby Lobby case which the supreme court got wrong. If the insurance and legal regulations says you must provide these services then you should provide them and your religious views, be damned. You don’t get to opt out of providing condoms or birth control or morning after because your religion does not like that. As owners you have an obligation to provide the service to all your employees.

      1. The Hobby Lobby case annoys the heck out of me. In particular, the bit where they “believe” IUDs cause abortions, so they don’t have to pay for them. IUDs don’t cause abortions at all – what Hobby Lobby “believes” should be irrelevant.

        And don’t get me started on the hypocrisy of making money selling products made in China with their limits on child numbers, forced abortions, forced sterilization etc.

        Perhaps they’re looking to up their sales of knitting needles and coathangers.

  7. anti-discrimination laws are at odds with free speech

    Sorry, but I have no idea why anybody would think that. There is no connection whatsoever between somebody’s ability or inability to express an opinion and the requirement or not to provide equal service to everybody. Freedom of speech is about freedom of speech, not about, say, denying admission to a bar; that is why it is called “freedom of speech”.

    1. By construing the phrase so literally, you’d permit outlawing all forms of expression that aren’t spoken or printed (assuming you favor freedom of writing / press). You’d allow those students in the US who wore black armbands as a protest of the Vietnam War to be punished as well.

  8. I’m not opposed to anti-discrimination laws on the basis of freedom of speech or expression, I’m opposed on the basis of a right to freedom of association, which in my opinion is given short shrift. You can argue about whether or not businesses are legally persons, but they are owned by natural persons, who shouldn’t have to give up any of their legally guaranteed freedoms to own a business, or at least we should consider carefully when and what freedoms should be infringed on, and why we might be justified in doing so via government action. I wouldn’t like it if we ended up with a society that looked like the one Grania depicts either, but when you give people freedom, they might do things you disagree with. Should a cake decorator have the right to refuse service to the KKK? Yes. To the SPLC? Also yes.

    1. Can’t see it quite that way. If the KKK member comes into the bakery and simply wants to buy a cake, you must sell the cake. If the guy wants you to decorate the cake with some anti Jewish or anti black slogans you should be able to say take your cake and eat it.

  9. Freedom of expression is sort of a slippery concept anyway. I think mostly we have freedom of speech in mind, which in the strictest sense is only about speech itself, and doesn’t really cover instances like the bakery situation.

    1. No, I have freedom of expression in mind. And so does the law. It’s why burning a US flag is legal. Burning a flag is both the proper way to dispose of a flag and a strong protest – the action is the same, but the “speech,” the expression, is the difference. And the US Constitution protects broadly protects free speech.

      1. I just meant that some of us, myself included, would defend freedom of speech, specifically, at any cost. But something like allowing a business not to let black people enter doesn’t fall under the narrower scope of speech, but the broader and harder to define “expression.”

        Then we have to ask ourselves, is this really what we mean by freedom of expression? To allow an individual to express racism should certainly be protected, but a business to actively (and possibly physically) keep black people away? Is this “expression”? Should it be protected in the same way as the freedom to SAY that you don’t like black people?

        1. Once you know how a business owner stands on any given issue, as in the bakery example, move on and never darken their doors again.
          Circulate by whatever medium of your experience (with the bakery) without inciting violence and your freedom of expression is fulfilled. By warning, in this case, gays, that this shop has unacceptable conditions, penalise them by withholding the considerable fiscal power of the pink dollar.
          Common sense is what is needed not over convoluted arguments as to why petty people refusing to decorate a cake ( beats me why they are in business) have any rights or not, because that right has been expressed and carried out.
          Think about someone decorating your cake of expression of love who actually despises you, are you not better of with someone else?
          Laws will and can suppress bigotry, etc but if it’s not how you actually feel and recognise is wrong for the well being of society and individuals the answer to this behaviour is not buried in laws.

  10. Great question with lots of great observations. I lean way over to the side of free speech based on the freedom of the individual to do as he or she chooses. I abhor the thought of it but I want to support the right of a business to do as they choose, serve whom they choose, and deny whomever they choose, and then let the market sort it out. I disagree that, especially in the South (I am a Seattleite now living in South Carolina) we would immediately revert to the segregation of a hundred years ago: people here are like people everywhere and see the general silliness of it. (Though I think many would be surprised to see Blacks being as prejudiced as Whites.)

    But I don’t see business as individuals acting with freedom for two reasons. First is that they accept a state license to operate. I don’t know – and doubt – if there is an explicit directive to obey the laws of the state, but if there isn’t then there should be. No one is forced into going into business. It’s a voluntary endeavor. A trade. The state says that you can do *this* as long as you do *this*. You sign, operate according to law, and you’re fine.

    Secondly businesses aren’t isolated. They rely on roads, products free from toxins, a police force, and everything that comes from the social contract. This is an acceptance of another trade. “We provide you with this (says the state), and in turn, you agree to act like this.”

    It’s the trade component that bothers me the most about religious complaints. When what’s-her-name in whatever=state refused to write marriage licenses I don’t know why she wasn’t immediately removed. The state agreed to pay her 65,000 a year plus benefits (I don’t know what she made) for *keeping the law*. Which she refused to do. It was voluntary on her part and I guarantee that other people would have liked to have her job. I feel the same way about airlines – they have a state license to move people around and then make rules for PR and profitability. Flying is voluntary. If you don’t like their rules you have other options. And the exercise of your religious beliefs doesn’t trump these rules. No one is telling anyone what they can believe. Believe as you wish. It’s the public expression of those beliefs that become onerous when an individual believes them to be of a higher order than any belief I have. You can grouse all you want, there’s no rule against that, just like PCC did when he got felt-up again by TSA. But if you want to fly then you subject yourself to the rules of flying.

  11. I don’t think the law should be absolute either way. Outlawing discrimination against certain types of people without consideration of the effects on those people seems like an attempt to force a particular morality onto the public.

    There’s a general principle in law that when the government restricts individual rights in order to serve a wider public interest, it should do so to the smallest extent necessary. This, I think, requires a consideration of the actual effects of discrimination. I would support the traditional right of business owners to refuse service to anyone, and the right of people to freedom of association, so long as it wasn’t an undue burden on those they didn’t want to serve or associate with.

    In the case of wedding cake bakeries, if there are ten comparable bakeries in the city and one doesn’t want to serve gays, that should be allowed. Gays can easily get service at the other nine, so restricting the business owners’ freedom is not justified. Competition would tend to punish businesses that refuse paying customers, and that is enough. On the other hand, if there are only one or two bakeries in the city, or if all ten bakery owners refuse to serve gays, they can justifiably be ordered by a court to serve everyone, to further the wider public interest.

    Remember that protecting freedom of speech means protecting distasteful speech. (Speech people like needs no protection.) Similarly, protecting freedom of association means protecting people’s freedom to associate (or not associate) in ways you find distasteful. The same goes for other rights.

  12. In the second photo, what are those sticks that the Orthodox Jews are examining so closely?

    In the first photo, I wonder if banning women is in compliance with the Subway franchise agreement.

  13. Anti-discrimination laws are against free speech. And as such, I’m not a big fan of them. However, we don’t always have the option of holding perfectly to our ideals. Sometimes, compromises have to be made.

    When it comes to anti-discrimination laws, the basic idea is simple. The law must be against DISCRIMINATION. Not against specific beliefs. In other words, the anti-discrimination law must not discriminate.

    It’s okay for a law to force Christian bakers to make a gay wedding cake, if and only if that law would force me to fix a computer I knew would be used to spread anti-gay propaganda.

    Any law infringing upon freedom must do so in a way that the law can potentially apply to anyone. Only then is the law controlling disruptive behavior, and not outlawing unpopular opinions.

  14. I think the whole discussion is complicated.

    First, the First Amendment guarantees “freedom of speech” and “freedom of the press” but nowhere mentions “free expression” which is broader in extension than the actual guarantees (based on standard usage). I understand groups like the ACLU like to push “freedom of expression”, but that is because they are advocates for an expansive reading of the First Amendment. [Not saying good or bad here.]

    Second, groups are defined by boundaries, that is to say, by whom they exclude. If you look at the Democrats, you can’t be a registered Democrat if you are a registered Republican. This might sound obvious, but the same principal is true of ethnic and religious groups, as well as groups that define themselves in terms of sexual preference or gender identity. There has to be a paradigm of a real Scotsman (that excludes someone) or the idea of being a Scotsman is rendered meaningless.

    I think much of twentieth century liberal idealism is based on the disappearance of racial, ethnic and religious identities (some version of Star Trek). While it is true that there are secular cosmopolitans who have very weak to non-existent ethnic or religious identities, this only sets them off as a distinct particularity from those particularities that DO have strong ethnic or religious identities. There is no society in the world composed only of secular cosmopolitans.

    Moreover, you can note within secular identity groups like atheists, feminists, LGBT, etc., boundary policing and disputes over orthodoxy (TERF feminism versus Transphilic feminism/ “Islamophobic” feminism v. “non-xenophobic” feminism).

    The bottom line is that you can eliminate ethnicity and religion, but people will still divide themselves up, police group boundaries, exclude others, and there will always be a fight to try to get whatever governing authority (be it a university president or the US Congress) to legitimate one’s normative system over one’s opponents. For example, will TERF feminism become PC Orthodoxy or not, and non-TERF feminists marginalized? Will the State force TERF feminists to include trans-woman in their conferences?

    The bottom line is that all the nasty features of religious and ethnic identity just get recast in secular terms. The reality of exclusion and disputes over orthodoxy/heresy remains. [These are incidentally elements of scientific institutions as well, especially in times of a real paradigm shift.]

    Third, since there will always be identity groups, identity groups will always have boundary disputes and/or exclude others, and will always fight with each other to see that their norms are imposed by the power structure, it seems like a political question. I want my group to be able to exclude who we want, but not your group.

    The photographs in this essay all deal essentially with boundary policing by groups that I suspect the author does not view favorably. However, what about the case of TERF feminists who want to exclude trans-women? What about an LGBT group who wants to exclude a celibate gay Catholic who believes the Church is right about homosexuality but is seeking solidarity with other gays on the basis of gay identity? How about an atheist group that wants to exclude Stalinists seeking to recruit people for a communist movement? What about Black groups on college campuses that want segregated dorms so they can surround themselves with their co-ethnies?

    Is there a principle here, or does it come down to friends and enemies? [Leftists like to invoke “power”, but your group by definition has the power if it is capable of getting those in civil authority to impose your norms on everyone else.] If it is all political, then what is wrong with carving out a space where individuals can decide with respect to their homes, schools, neighborhoods, churches, and businesses who they want to exclude without interference from the State? Shouldn’t you be permitted to have a private atheist school or an atheist gated community?

    Obviously, this is a political decision, essentially a decision to de-politicize a particular territory, in the sense that these private spaces would not be simply a mirror of the reigning ideology of the State, but would reflect individual preferences. I would imagine in any theocracy worth its salt, public expressions of atheism would be suppressed, and people would be forced to parrot what the theocrats dictated.

    I guess the question is whether there should be a boundary between the private individual and the State, and where that boundary should be drawn. Most people in liberal democracy probably agree that such a boundary is good, but they may not agree where the line should be. I suspect their tolerance for a reduction in the scope of a particular dimension within the private sphere is a reflection of their political calculation about whether the state will impose their personal preferences or not.

        1. Contrary to Rationalwiki, I imagine a TERF feminist would assert that someone with gender dysphoria has a form of mental illness, and just because they feel like they are actually women does not make them women, anymore than believing you are Napoleon makes you Emperor of France.

          Many of these TERF feminists include women who have been badly traumatized by men in sexual and domestic violence through the course of their lives, and want a safe space away from men.

          Ergo, Rationalwiki is mean and hates victims of rape and domestic violence, and fascists are mean and hate victims of rape and domestic violence. . .

            1. I’m not offering these comments for purposes of the resolving the dispute. I am illustrating the technique of appeals to orthodoxy to police boundaries.

              Rationalwiki knows that all gender differences are socially constructed based on what some authority figure told them speaking ex cathedra. Therefore, TERF feminism, founded on real difference between the sexes, is clearly heretical wrongthink.

              TERF feminism knows that being mean to victims of domestic and sexual violence (by not slavishly cowing to their every demand no matter how unreasonable)–also based on authority–views the being told they can’t exclude transwomen from their venues in itself a heresy. Further, I suspect they view female victims as higher in the hierarchy of victomology than transwomen, so views like Rationalwiki challenge the status of their victim caste.

        2. It is customary in writing to explain the meaning of initialisms, acronyms and abbreviations that may be unfamiliar to readers. Common abbreviations that appear in dictionaries, like etc, et al., e.g., or i.e. are usually excepted from this convention or in specialized writing environments such as bibliographies, footnotes and library records.

          Initialisms have proliferated online, and my personal reaction to some of the more outlandish ones is WTFAIII.

          1. I left a closing phrase out of the first sentence in the previous comment. It should read:

            “It is customary in writing to explain the meaning of initialisms, acronyms and abbreviations that may be unfamiliar to readers the first time they are used.”

  15. The other thing to remember is that once you sign over your personal freedom to the government, and they build some bureaucratic leviathan to regulate us to the promise land, it is very rare that the government turns around and hands that freedom back to you.

    In fact, the jurisdiction of the bureaucracy generally expands over time. In the U.S., we have these historic anti-discrimination laws, and there is a constant pressure to classify more and more groups and protect them from discrimination (which leads to more regulations about how to square one group’s protections against another). Where does it end? In 1964, the idea that homosexuals could be some kind of protected class wouldn’t meet the giggle test. So what about lookism, and obesity and sadomasochists, and gambling addicts and drug addicts etc., and at some point, haven’t you shifted into something resembling totalitarianism?

  16. It is an encouraging sign of progress, of course, but there is also something bittersweet in finding that it is now corporations who are leading the charge against race, sex, and LGBT inequality. Recuperation, I believe, is the technical socio-political term for this.

  17. The Irish bakers would – and should – be protected by US law. The customers went to the bakers asking for a cake that says “support gay marriage.” That’s manifestly speech that’s being coercively sought, and I do trust the First Amendment enough to think that sort of thing wouldn’t fly here.

    It’s also IMO an utterly douche-y thing to do. I’m a big fan of gay marriage, heck I may be in one some day, but come on. You don’t need to weed out everyone who opposes it and give them a choice between (literally) giving your views lip service and not having a job.

    Nobody’s cause is so righteous that they should be able to arm twist and bully others for it. Imagine your worst nightmare of a right-wing theocrat or college campus PC Principal having this power over you. If that makes you shudder, don’t empower your friends to act this way either.

    1. The different here is that the bakers are not using their freedom of expression when writing “Support Gay Marriage.” They are providing a service in a business. The writing is free expression on the part of the customer. I think a parallel scenario would be if you were denied a web domain registration because the business providing the registration disagrees with you about the views you plan to espouse on the site.

      I’m not sure what power you fear right wing theocrats may have end up having under these guidelines. I don’t think a bakery should be able to deny the Westboro Baptist Church service either if they wanted to emblazon a cake with their infamous “God Hates Fags” slogan.

      The issue here is not with the business having freedom of speech, it is with the customer being denied service. The “go somewhere else” argument is exactly the argument that was used prior to The Civil Rights Act. Black people could just go somewhere else. When enough businesses tell them to go somewhere else, they end up being denied the basic ability to survive–think about if every local food supplier from grocery stores to farms decided not to serve black people or gay people or Christians or atheists. I don’t find the idea that one person or group should be excluded from the law based on the expectation that most of the rest of society will comply to be very compelling.

      1. Your web domain scenario is more like buying a cake and decorating it yourself and I think that’s perfectly fine. I can see a difference in providing a medium, cake or website, and providing content.
        The issue seems to be a difference between freedom of speech / expression and the consequences. I can place an employment ad stating Sicilians need not apply, perfectly fine freedom of speech, however, the consequences of that expression would be a costly civil suit at the very least.
        In the US you have the right to be an asshole, but not an asshole free from consequence.
        An off topic example would be the people that attempted to take over the Malheur National Wildlife Refuge. As long as they stuck to ranting on the web, their speech was protected. Acting on that speech in an illegal manner got them arrested and now they’re awaiting trial.

        1. Your web domain scenario is more like buying a cake and decorating it yourself and I think that’s perfectly fine. I can see a difference in providing a medium, cake or website, and providing content.

          I agree, there is a difference. The similarity I was driving at was if a business who sells rights to Internet domains decided not to do it on the basis that they knew the buyer was going to put pro-gay propaganda on it. The free expression is that of of the customer; likewise, a business that decorates cakes is providing a service where they allow the customer to utilize their freedom of expression. In both examples, the seller is discriminating against homosexuals based on subjective disapproval of the messages.

  18. To underline the point, the couple visiting the bakery in Belfast weren’t asking for a gay wedding cake. They were asking for a cake with the words “Support gay marriage” looking like this.

    Let’s be serious. At least with this particular cake, both sides knew the cake was speech. You go all over Belfast looking for any bakers who won’t chant “Support gay marriage” with you, and sic the law on them. And I just can’t get over that, for all that I agree with the plaintiffs and not the bakers, that’s just bullying.

    1. In the US the baker has the legal option of saying they do/don’t do political messaging, and they can make other ideologically-neutral rules about the services they provide such as ‘no swearing.’ But they cannot refuse a political message based solely on content. They can’t, for example, agree to write “Support pro-life” for one customer but then refuse to write “Support pro-choice” for another customer. You either serve both customers or you serve neither.

      I think that’s a reasonable stance. Its worth remembering that even though this occasionally puts an enlightened liberal in the position of having to create some odious message for the KKK or the like, historically the right to refuse service based on content has overwhelmingly been used to marginalize minorities. The ability to refuse some customers while servicing others might occasionally align with social justice causes, but the vast majority of the time it undermines them.

      1. This is not accurate. A business owner can refuse service to anyone they want, unless it is on the basis of a protected class like race, nationality or sex. Many states have civil rights protections for homosexuals, so not baking the wedding cake can be construed as discrimination. On the other hand, I don’t think refusing to bake a cake with Klan slogans would pose any problems, and while there is talk about Islamophobia, if Hamas wants a cake vowing death to Israel, I suspect you will be safe if you decline.

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