In Obergefell [v. Hodges], I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” (dissenting opinion). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” (Alito, J., dissenting)
— Justice Clarence Thomas, Masterpiece Cakeshop LTD. v. Colorado Civil Rights Commission (2018) (concurring in part & concurring in the judgment)
The case is Arlene’s Flowers Inc. v. Washington (docket no. 19-333). The issues raised in the case are: “(1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch.”
Petitioner’s Statement of Facts
The following are the pertinent facts as set out in the Petitioner’s cert. petition:
Barronelle Stutzman is a Christian artist who imagines, designs, and creates floral art. She serves everyone and sells pre-arranged flowers for use in any event. But she cannot take part in or create custom art that celebrates sacred ceremonies that violate her faith.
After serving Robert Ingersoll, a gay client, for nearly ten years, Barronelle politely referred him to three other florists when he asked her to create floral art celebrating his same-sex wedding. That resulted in Washington’s unprecedented attack on Barronelle in both her personal and professional capacities, and a ruling that she discriminated against Robert because of his sexual orientation. The ruling threatens to bankrupt her.
→ Barronelle Stutzman, Why a Friend is Suing Me: the Arlene’s Flowers Story, Seattle Times (Nov 12, 2015)
→ Supreme Court’s 2018 remand order here.
State High Court Ruling on Remand
Writing for a unanimous nine-member Washington State Supreme Court, Justice Gordon McCloud declared:
The State of Washington bars discrimination in public accommodations on the basis of sexual orientation. Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation. We therefore hold that the conduct for which Stutzman was cited and fined in this case—refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding—constitutes sexual orientation discrimination under the WLAD [Washington State Law Against Discrimination]. We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.
→ Kristen K. Waggoner (counsel of record)
Select Amici Briefs
Among the various amici briefs filed in support of granting cert. were ones from:
ACLU Position in Defense of LGBT Rights
- ACLU classifies case as “Constitutional Principle: LGBT Rights”
The ACLU filed a lawsuit on behalf of a gay couple in Kennewick against a florist that refused to sell them flowers because of their sexual orientation. The suit says that the refusal of Arlene’s Flowers to sell flowers to the couple violates the Washington Law Against Discrimination.
- Oral Arguments for Barronelle Stutzman’s case before the Washington State Supreme Court (Nov. 15, 2016)
- Washington Attorney General’s Press Conference (Feb. 17, 2017)
- So to Speak podcast: Masterpiece Cakeshop v. Colorado Civil Rights Commission — First Amendment Salon Discussion (March 22, 2018)
Cert. Petition Filed in Ultrasound Informed Consent Act Case
The case is EMW Women’s Surgical Center v. Meier. The issue raised in the case is “[w]hether compulsory display-and-describe ultrasound laws, such as the Kentucky Ultrasound Informed Consent Act, abridge physicians’ freedom of speech in violation of the First Amendment.”
In a split decision, a Sixth Circuit panel majority opinion by Judge John K. Bush concluded that the:
Ultrasound Informed Consent Act—is an informed-consent statute like the statute in Casey because it provides truthful, non-misleading, and relevant information related to an abortion. The statute incidentally burdens speech only as part of Kentucky’s regulation of professional conduct. Therefore, H.B. 2 is not subject to any heightened scrutiny with respect to the doctors’ First Amendment rights, and it does not violate those rights, based on NIFLA and Casey.
Writing in dissent, Judge Bernice Bouie Donald declared:
I am gravely concerned with the precedent the majority creates today. Its decision opens the floodgates to states in this Circuit to manipulate doctor-patient discourse solely for ideological reasons. So long as the state’s legislators wisely use the words “informed consent” in the title of a regulation, the majority instructs us to “defer to the legislature’s determination of which informed-consent disclosures are required,” despite what the evidence or standards of care say.
U. Michigan Dissolves ‘Bias Response Team’ in Response to First Amendment Challenge
This from Tobias Hoonhout over at the National Review:
The University of Michigan will disband its ‘Bias Response Team’ as part of a settlement reached with a campus free-speech nonprofit that sued the university over the First Amendment violations inherent in the team’s mandate. The settlement was reached after the Sixth Circuit Court of Appeals ruled last month that the Bias Response Team “acts by way of implicit threat of punishment and intimidation to quell speech.”
Volokh on 10 Rules for How the Freedom of Speech Applies to College Students
Free Speech on College Campuses
- Diablo Valley College Violates First Amendment, State Law, by Dismissing Newspaper Adviser, FIRE (Nov. 5)
Alec Baldwin Files Defamation Suit Against Man He Got into a Parking Spot Dispute With
- A CNN story by Harmeet Kaur.
New Book on History of Lewd Words
- D.W. Kreger, “LEWD: The Secret History of English Dirty Words” (Windham Everitt Publishing Co., 2019). Abstract:
Did you ever wonder why you can use any word for poop except for the word sh*t? You can say excrement, poop, poo, poo-poo, feces, defecation, caca, dung, manure, stool, fecal matter, and human waste. You can even say the word crap. But, the word “sh*t” is banned by the federal government. You can be fined by the FCC for saying it on broadcast TV or radio. Here’s the weird thing; among all these words, it’s sh*t, and sh*t alone that’s illegal. Any other synonym is ok. Why is that? They all mean exactly the same thing. What’s so special about this one word? The same is true for the “F” word.
You can say sex, copulation, fornication, shag, boff, hump, diddle, score, or bone, and it’s legal. You can even say screw. It’s not polite, but it’s allowed. But, the word f*ck alone is banned by the US government. And the same thing is true for the word c*nt. There’s a lot of slang words for vagina, and they’re all allowed on broadcast media. All, that is, except for the “C” word. Why is that? What is so different about these words that makes them illegal when all their synonyms are ok? Well it turns out that all of these banned, four-letter words all have something in common. Something that makes them different. And, it has nothing to do with being obscene. In fact, there was once a time when these were just common words and not considered dirty at all. Now, finally, this book reveals the secret behind English dirty words and exactly how these particular lewd words became so offensive that they were outlawed by the federal government.
Zick Talks About His New Book ‘The First Amendment in The Trump Era’
- Q&A with law professor Timothy Zick talks about his new book “The First Amendment in The Trump Era,” First Amendment Watch (Oct. 30) (interviewer: Soraya Ferdman)
New Scholarly Articles
- Carissa Byrne Hessick, Child Pornography Sentencing in the Sixth Circuit, University of Dayton Law Review (2019)
- Chelsea Bellew, Combatting Campaign Finance Corruption in the United States, University of Dayton Law Review (2019)
New Scholarly Commentary
- Helen Norton, The Uses & Abuses of the Government’s Tools of Information Control, Jotwell (Oct. 7)
New & Notable from Volokh Conspiracy
- Court Orders Removal of Libelous Blog Posts About Former DHS Secretary Nominee Bernard Kerik (Nov. 5)
- “It’s OK to Be White” Flyers Lead to Promise of “Severest Disciplinary Action” by Western Conn. State U. (Nov. 4)
News from Free Speech Center at MTSU
- David L. Hudson, Judge Stops Suspension of Student Who Posted Sticky Note in Bathroom About Sexual Assault (Oct. 5)
- David L. Hudson, Lawsuit challenges Confederate mascot and imagery at public schools (Oct. 5)
- David L. Hudson, Florida Appeals Court rejects First Amendment challenge to school disruption law (Oct. 4)
News from First Amendment Watch
- North Carolina Supreme Court To Decide on ‘Actual Malice’ in a Defamation Suit Against a Local Newspaper (Nov. 5)
- Rep. Alexandria Ocasio-Cortez Unblocks Follower from Twitter, Issues Public Apology (Nov. 5)
- E. Jean Carroll Files a Defamation Suit against Trump for Saying She Lied About Sexual Assault (Nov. 4)[also see Ruthann Robson’s post over at Constitutional Law Prof Blog]
- Federal Judge Dismisses $300 Million Defamation Suit Against Three Media Companies Brought by Former Arizona Sheriff Joe Arpaio (Nov. 4)
Two New Podcasts Episodes from Unprecedented
“Not Alone In My Own Body” (Oct. 30). Description:
Emily Heiden was pregnant, panicked, and searching for advice. She found a clinic on the internet that promised medical guidance “without politics or hype,” yet what she encountered was not what she expected. California lawmakers, concerned about the way religious pregnancy centers marketed their services, later passed a law requiring them to include information about abortions. But the centers sued, arguing that the First Amendment protected them from having to advertise abortion services. This week, we discuss whether a state can compel you to say something you disagree with on moral grounds — from the perspective of the 2018 case NIFLA v Becerra.
Live Free…or Try (Oct. 23). Description:
Unprecedented begins with the story of a man who, nearly a half-century ago, committed a minor act of civil disobedience when he covered up the state motto on his license plate. Meet George Maynard, who battled New Hampshire over a slogan—Live Free or Die—that he found personally repugnant. His deeply held convictions would land him in jail, cost him his job, and carry him all the way to the Supreme Court.
So to Speak Podcast with Stanley Fish
Does free speech exist?
According to Cardozo Law Professor Stanley Fish, it does not.
[In this] episode of So to Speak: The Free Speech Podcast, we dig into what the colorful professor means by this assertion and discuss his forthcoming book, “The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump.”
Podcast: Special Edition of Clear And Present Danger — Conversation with Prof. David Kaye
In this special edition of Clear and Present Danger, we leave the past and jump into the present for a discussion on how international human rights standards are relevant to the burning question of where to draw the limits of free speech online. Joining us is law professor David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, as well as a professor of law at the University of California, Irvine School of Law. Kaye is also the author of the recent book “Speech Police: The Global Struggle to Govern the Internet.” On Oct. 21, Kaye presented a report to the UN General Assembly that attempts to provide guidance to both states and tech companies on how to safeguard free expression online while minimizing harms.
Our conversation delves into questions such as:
- What is the state of free speech today?
- Why is a historical perspective crucial to understanding current challenges to free expression?
- How do we reconcile the conflicting standards on free expression and hate speech under international human rights law?
- How has the UN human rights system developed standards that are more speech-protective than the European human rights system?
- Why has the digital era resulted in more, rather than fewer, restrictions on free speech globally?
- Should tech companies base their community standards on human rights principles?
- Do attempts by European democracies like Germany and France to limit online hate speech create a risk of “moderation without representation” for users of social media platforms in the US and elsewhere?
- How should we assess Mark Zuckerberg’s recent speech on free expression at Georgetown University?
FIRE 2019 Faculty Conference: Academics Debate Key Issues in Higher Education
This post from Peter Bonilla over at FIRE:
This past weekend at Boston University, FIRE gathered roughly 70 faculty members and graduate students from institutions around the country for our third annual Faculty Conference. As with previous years, attendees heard presentations from a variety of academic authors with a wide range of views on issues concerning academic freedom and the academic profession. And as with previous years, attendees found a rich terrain for discussion and debate.
This year’s conference featured discussions of, for example, the tricky issues of “indoctrination” in the classroom and the extent of its prevalence; the importance of protecting faculty members’ use of social media; and a multifaceted examination of the use of trigger warnings — their efficacy from a scientific perspective, as well as critical commentary on the wider cultural debates over their use.
Inspired by the number of submissions we received this year from academics pursuing new empirical research, we also added a special session giving space to several scholars, a number of doctoral students among them, to share their early results. In addition to showcasing additional trigger-warning-related research, that session also presented research into student attitudes on free speech, faculty support of diversity-related initiatives, and new methods for measuring political and social tolerance.
A high point of the conference came when renowned Harvard professor and FIRE Advisory Board member Steven Pinker delivered the conference’s keynote, which was a thoughtful and provocative examination of the nature of controversial ideas, what makes them controversial, and whether their controversy says more about the ideas — or about ourselves. . . .
Some papers presented starkly disparate views or offered opposing solutions to certain challenges, and panelists and audience members were unafraid to raise fundamental questions and challenges.
Needless to say, FIRE doesn’t place its imprimatur on every proposal accepted for discussion, and might even institutionally oppose some of the proposed solutions to the many challenges discussed at the conference. After all, if we just wanted to listen to views in line with FIRE’s mission and advocacy, we could save a lot of time and effort simply by sitting in our offices reading through our Newsdesk archives.
But by bringing a variety of faculty members to these conferences, seeking out a range of opinions, and creating conditions where thoughtful disagreement can flourish, FIRE is doing its best to help fulfill an important function of higher education.
Perhaps most importantly, we help connect faculty with others from around the country with whom they might not otherwise connect, and we try to make sure the conference has plenty of space for conversations outside the scope of our official program. There’s evidence that this setup is paying off in meaningful ways; in fact, some of the collaborative research results discussed at our conference this year can trace their roots back to conversations that started at our previous conferences. That’s exactly the kind of impact for which we’ve been hoping, and we’ll do our best to continue creating those conditions for it in the future.
→ If you’re a faculty member and this kind of conference appeals to you, be sure to join our faculty network to receive further updates.
2019–2020 SCOTUS Term: Free Expression & Related Cases
- Arlene’s Flowers Inc. v. Washington
- EMW Women’s Surgical Center v. Meier
- Americans for Prosperity Foundation v. Becerra
- New York Republican State Committee v. Securities and Exchange Commission
- Capital Associated Industries Inc. v. Stein
- Libertarian National Committee Inc. v. Federal Election Commission
- Carney v. Adams
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- United States Agency for International Development v. Alliance for Open Society International Inc.
- Carter v. Massachusetts
- Thompson v. Hebdon
- Price v. City of Chicago, Illinois
- National Review, Inc. v. Mann
- Charter Communications Inc. v. National Association of African American-Owned Media
Pending Petitions: Free Speech Related
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC (free speech-related)
Last Scheduled FAN