- 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.”)
- “Before you fire that political extremist…” [Robin Shea, Eric B. Meyer, Philip Miles, Eugene Volokh, Tammy Binford/HRHero]
- Municipal worker with brain injury could not perform “the essential functions of his job,” per a neurologist’s letter, jury award plus backpay calculation totals $354,070 [Robin Shea on Stragapede v. City of Evanston, Seventh Circuit]
- “Trump suspends burdensome Obama EEO-1 form that cost $400 million” [Hans Bader]
- Court orders EEOC to revamp rules for employee wellness programs, under fire as ADA and GINA violation [Allen Smith/SHRM, Barbara Zabawa/WellnessLaw]
- A proposal from NYU’s Sam Estreicher: “‘Safe Harbor’ Rules for Cases of Chronic Hiring Aversion” [Journal of Law and Public Affairs, shorter version On Labor, also Sam Bagenstos response and Estreicher rejoinder]
- Nuclear Regulatory Commission regulations override ADA, so utility is allowed to dismiss nuclear plant employee displaying paranoid symptoms [McNelis v. Pennsylvania Power & Light, Third Circuit, via John Ross/Short Circuit]
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.
- Crash-faking for insurance money, long a U.S. problem, happening in U.K. too [Legal Futures, Telegraph, compare]
- $5000 and an apology for a racist comment on AirBnB? Sounds good. Community service? Even better. A college course too? Why not? Plus more community service? Sure! [The Guardian, ABA Journal; settlement presided over by California state agency]
- Encyclopedia of Libertarianism now free online thanks to Cato Institute. My contribution was on Thomas Macaulay;
- Conservatives! Victory lies within reach! All you need to give up are your principles! [Jeremy Carl and Mark Krikorian, NRO, on idea of regulating social media and Internet providers as public utilities; more from Electronic Frontier Foundation on the new wave of electronic de-platforming; related yesterday on business ostracism]
- Per Judge Easterbrook, caption tells story of case: “The City of South Bend, Indiana, is suing one of its constituent parts.” [City of South Bend v. South Bend Common Council, Seventh Circuit]
- “Difficulty proving ‘criminal intent’ should be ‘a severe, even disabling, obstacle to prosecution.'” [Caleb Kruckenberg on this New Yorker piece deploring lack of more white-collar convictions]
- Mother who gives 10 year old the run of a Lego store: Mom of the Year, or candidate for arrest? [Lenore Skenazy on Ontario County, N.Y. incident]
- Sorry to see WSJ Law Blog close. A wealth of valuable content, often first on stories, showcase for rising writers [farewell post]
- Oops! “The bill as [passed] …allows a pregnant woman to commit homicide without consequences.” [Lowering the Bar on New Hampshire measure]
- No, a court really didn’t overturn Florida stand-your-ground law. Let Eugene Volokh explain [Volokh Conspiracy] Still, the recently enacted procedural fillip the court did strike down was one of practical significance to many defendants [C.J. Ciaramella, Reason]
- In the mail: John Corvino et al., Debating Religious Liberty and Discrimination. Good opening essay [Oxford University Press]
- What one bad lawyer can do: feds chase $600 million in disability claims linked to fugitive Eric Conn [Chris Edwards, Cato]
“Few Canadians realize how seriously these statutes infringe upon freedom of speech. The Ontario Human Rights Commission has stated, in the context of equivalent provisions in the Ontario Human Rights Code, that ‘refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity … will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.'” [Bruce Pardy, National Post] We noted the New York City Human Rights Commission’s similar guidance last year.
- Go figure: Trump executive order says “Hire American” even as federal law bans job discrimination in favor of American citizens [Jon Hyman]
- Though ADA excludes “gender identity” claims, judge green-lights suit over gender dysphoria [P.J. D’Annunzio, Law.com]
- “UC Berkeley Drops Free Online Videos In Response To Government Threat” [Jane Shaw/Heartland, and thanks for quote]
- “Hostile work environment can be created with one racial slur, 2nd Circuit rules” [ABA Journal]
- Connecticut’s CHRO attracts much higher per capita filings of workplace discrimination than comparable agency in Massachusetts, with complaints from incumbent employees a key growth area [Marc E. Fitch, Yankee Institute; Daniel Schwartz with somewhat different view]
- Missed, from December: Philadelphia could close businesses deemed to discriminate [Tricia Nadolny, Philadelphia Daily News, related earlier]
Freedom should mean freedom for everyone, so stop trying to use laws to force people to utter and print words in which they disbelieve:
A Kentucky appellate court on Friday ruled that the Christian owner of a printing shop in Lexington had the right to refuse to make T-shirts promoting a local gay pride festival.
[Jacob Gershman, Wall Street Journal] As Eugene Volokh notes, the “three-judge panel ruled, on a 2-1 vote, that Adamson’s actions didn’t violate the ordinance (and thus avoided having to decide whether he had a First Amendment right, under the ‘compelled speech’ doctrine, not to be forced to print messages of which he disapproved).” The majority opinion found that the ordinance did not prohibit discrimination based on “message or viewpoint”; a concurring judge also cited Kentucky’s version of RFRA, reasoning that the law as interpreted burdened the owners’ religious practice and the state had not shown it minimized burdens in the course of serving a compelling purpose.
Opinion here and earlier on the case here, here, and here. And I’m happy to report that Cato, along with UCLA law professor and First Amendment specialist Volokh, filed an amicus brief in support of this outcome (though urging it on direct First Amendment grounds). More: John Corvino at Slate, who disagrees with me on the wedding cases, but agrees that this is one of forced expression.
And much more: I’ve now written a longer piece on the case for Cato at Liberty.
- “Freedom of Association Takes Another Hit” as Washington high court rules against florist Barronelle Stutzman [Roger Pilon, Ilya Shapiro, earlier]
- Aside from chipping away at the rule of law, job preservation via presidential threats may not work well as an economic development strategy [David Henderson]
- NYC cops shot burglar in rear end and now he wants $10 million over that [New York Post]
- Granting certiorari in Blackman v. Gascho case would allow Supreme Court to tackle fee abuses in class actions [Ted Frank, Daniel Fisher, earlier]
- Will competing versions be introduced of FADA, the religious-exemption First Amendment Defense Act? [Jessica Yarvin/PBS, I’m quoted; my take on the first introduced version of the bill]
- I talked Sunday with Maryland-based blog radio hosts Ryan Miner and Eric Beasley on topics that included the Gorsuch nomination, Chevron deference, doctor-assisted suicide, and redistricting reform [BlogTalkRadio, one of my longer audio interviews at 1:12:00]