- “Lucha Underground Wrestling Sends Legal Threat To Journalists For Publishing ‘Spoilers'” [Tim Geigner, TechDirt]
- Watch what you say about lawyers: politically active Baton Rouge trial lawyer threatens political blog The Hayride over critical coverage [The Hayride, Robert Davis/Louisiana Record]
- Update: Stanford’s Mark Jacobson drops defamation lawsuit against other scientists [Jonathan Adler, earlier]
- Update: federal judge tells town of Sibley, Iowa to stop threatening resident who runs website complaining about way town smells [ACLU of Iowa, earlier]
- Recent topics in FIRE “So To Speak” podcast series include Great Firewall of China, interview with former Evergreen State professor Bret Weinstein, Masterpiece Cakeshop case at SCOTUS, Is there a campus free speech crisis?
- “Spanish Hate/Anti-Terrorism Speech Laws Doing Little But Locking Up Comedians, Artists, And Dissidents” [Tim Cushing, TechDirt; a recent Scottish case]
- Cakes and coercion: “Endorse the state’s right to coerce speech or conscience and you have ceded a principle that can so easily come back to haunt you.” [Andrew Sullivan, New York mag] “The legal course has some advantages. You can use state power, ultimately the barrel of a gun, to compel people to do what you think is right.” [David Brooks] Yes, courts have often found a constitutional right to discriminate, so scratch that Masterpiece Cakeshop talking point [Eugene Volokh]
- Fugitive Kentucky lawyer and disability-fraud king Eric Conn arrested in Honduras [Bill Chappell/NPR, earlier here and here]
- As White House belatedly consults, heeds seasoned counsel, lawsuits against travel ban begin running out of steam [Ilya Shapiro, The Hill]
- Cheers for restoring schools’ discretion to serve 1 percent chocolate milk, USDA, and next bring back whole milk [Stephanie Ebbs and Erin Dooley/ABC News, earlier]
- Court hears oral argument on sports betting and state commandeering case Christie v. NCAA [Ilya Shapiro/Cato, Jacob Sullum, earlier]
- At recent federal court showdown with Waymo, things went from bad to worse for Uber’s lawyers [Cyrus Farivar, ArsTechnica]
“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.
The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)
Mostly Cato links:
- Today, Monday afternoon: Ilya Shapiro and John Paul Schnapper-Casteras preview Masterpiece Cakeshop v. Colorado Civil Rights Commission from different perspectives on eve of oral argument, Roger Pilon moderating [watch online, earlier] Why, on cakeshop case, “it won’t surprise me if the court comes up with something a little muddled and a little bit hard to read” [Chris Johnson, Washington Blade, quotes me] More: George Will (cakes are not expression; but while couple who sued cake-baker “might be feeling virtuous for having done so… siccing the government on him was nasty.”);
- “Christie v. NCAA: Anti-Commandeering or Bust” [Jonathan Wood and Shapiro, earlier here and here] “Supreme Court’s Sports Betting Case Could Redefine Relationship between Feds and States” [Shapiro]
- Federal courts were politicized before the Federalist Society came along, and promoting the cause of textualism helps de-politicize them [Roger Pilon]
- SCOTUS should use Janus v. AFSCME to recognize public employees’ First Amendment rights against forced union agency fees [Shapiro, Trevor Burrus, and Aaron Barnes] More: Shapiro and Frank Garrison, National Review; Cato Podcast with Jacob Huebert and Caleb Brown;
- Silvester v. Becerra: Ninth Circuit errs on individual gun rights, SCOTUS should correct [Shapiro and Matthew LaRosiere]
- Assuming patents = property, structure of Patent Trial and Appeal Board may flunk constitutionally required norms of judicial independence [Shapiro and Barnes on Oil States Energy Services, LLC v. Greene’s Energy Group, LLC; Federalist Society panel video with Gregory Dolin, John Duffy, Arti Ray, and Robert Greene Sterne; Jeffri Kaminski, WLF]
- Collins v. Virginia gives Court a chance to protect the integrity of the home against warrantless searches [Jay Schweikert] And mark Dec. 13 for the 2017 Cato Surveillance Conference;
- Extending Commerce Clause to prairie dogs gnaws at constitutional principle [Shapiro, Burrus, and Reilly Stephens on Cato amicus brief urging certiorari in PETPO v. U.S. Fish & Wildlife Service; Jacob Sullum]
Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]
SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]
While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.
My Cato Institute colleagues (Sept. 6) and the U.S. Department of Justice (Sept. 7) have both weighed in with amicus briefs in the Supreme Court’s fall-term case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, supporting the principle that the First Amendment does not permit Colorado public accommodations law to force independent baker Jack Phillips to create a cake intended for a same-sex wedding in which he does not wish to participate.
Cato’s brief emphasizes the expressive significance of custom cake baking, which involves the creation of a unique work of art with symbolic and emotional elements (more from Ilya Shapiro and David McDonald).
The Department of Justice brief advances a similar argument and also argues that creative expression aside, the law must not force “participation in an expressive event” under First Amendment precedents such as Barnette v. West Virginia Board of Education (public school students may not be compelled to take part in Pledge of Allegiance, flag salutes, or similar ceremonies), absent a more compelling state interest than Colorado has shown here.
Both briefs distinguish custom cake making from other wedding services. Cato notes that some services (wedding photography, custom floral design) share elements of creative expression with custom cake baking, while many other services do not. DoJ says there is no First Amendment problem applying public accommodation law to hall or limo rental or to the sale of off-the-shelf cakes. Where a product is not custom made for a particular client or event, the law is dealing with a sale of goods, not conscripting an expressive service.
Neither Cato’s nor DoJ’s brief is grounded in a free exercise of religion argument, but would apply to refusals to deal whether grounded in religious belief or not. Earlier here and here. More: Erica Goldberg.
- Litigating the boundaries of religious liberty: Tunku Varadarajan interview/profile with Becket Fund’s Montse Alvarado [WSJ] And mark your calendar for Sept. 28, Cato’s inaugural day-long conference “The Future of the First Amendment” at which I’ll be on a panel on religious liberty;
- What Hamilton wrote: archive find casts further doubt on theory President isn’t “officer” subject to Emoluments Clause [Brianne Gorod, Take Care] Broad definition of emoluments in suit against Trump might trip up its own lead plaintiff, Connecticut Sen. Richard Blumenthal [Michael Stern] “There is nothing wrong with Justice Gorsuch speaking at the luncheon despite its venue.” [Steve Lubet on Trump-Hotel-as-speech-venue flap]
- Duties of celebration: Cato amicus urges SCOTUS to consolidate Arlene’s Florist with Masterpiece Cakeshop case [Ilya Shapiro and David McDonald]
- Maryland gun ban unconstitutionally broad, argue Randy Barnett and Dave Kopel in Cato amicus [Shapiro, Kopel, and Matthew Larosiere] Restore rights to a rehabilitated felon? Sure, says Maryland, but not gun rights. Constitutional check [Shapiro]
- Federalist Society’s annual Supreme Court roundup speech for last term, by Miguel Estrada, is now online. Unfinished business: 10 certiorari petitions from last term SCOTUS justices should have granted [Mark Chenoweth, WLF] And don’t forget to mark your calendar for Cato’s Constitution Day Sept. 18;
- By 2019, constitutional law discussions at America’s top law schools were being conducted entirely in emoji [@tribelaw on Twitter on “First or Second Amendment, pick one” question of whether persons assembling for political protest have right to bear arms at the same time]
By agreeing to hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court has set up a potentially major decision on “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. My link-rich Cato post also goes on to discuss the sleeper case of Pavan v. Smith, which offers a glimpse of how a post-Scalia conservative wing may address issues following in the wake of Obergefell.
P.S. More from Erica Goldberg on the hubbub over Gorsuch’s dissent in Pavan.