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Blogs | May. 13, 2017

Unjust discrimination against individuals who identify as LGBT is a real problem. So is eroding religious freedom but in some cases another First Amendment right may be even more relevant.

Yesterday the Becket Fund for Religious Liberty released a statement announcingthat a Christian business owner finally won a case brought against him by gay plaintiffs alleging a civil rights violation:

A Kentucky court championed free speech today, ruling that the government cannot force t-shirt printer Blaine Adamson to create gay-pride t-shirts in violation of his religious beliefs. The court agreed with Becket, top legal scholars, and LGBT business owners, who all stood up for the rights of artists to choose what messages they would promote, without fear of government punishment. Todaysruling emphasizedthat the service [the printer] offers is the promotion of messages. The conduct [the printer] chose not to promote was pure speech.

Adamson is the owner of Hands On Originals, a small print shop in Lexington, Kentucky. Adamson regularly employs and serves LGBT individuals, and serves everyone regardless of race, gender, or sexual orientation. He also cares deeply about the messages he promotes. Just as pro-choice printers have declined to print pro-life messages, and LGBT printers have declined to print anti-gay messages, Adamson does not print messages that violate his beliefs. Following common printing industry practice, he only creates messages that align with his views, and has declined to create t-shirts promoting strip clubs, violence, and sexually explicit videos. Thats why LGBT business ownersstood upfor Mr. Adamsons right to choose the messages he promotes.

It doesnt matter what the speech is pro-gay, anti-gay, pro-immigration, anti-immigration the government cant force you to print it, saidLuke Goodrich, deputy general counsel at Becket, a non-profit religious liberty law firm.Thats the beauty of free speech: It protects everyone.

This seems to me an important case that may have implications for the wedding-industry wars.

So far as I know, Christian wedding industry professionals photographers, cake decorators and caterers have always lost in court for declining to provide services to same-sex weddings.

While I dont know a lot about the legal reasoning in those cases, whenever I see Christians discussing such casesthe issue seems to be framed as a question of the First Amendment right of religious freedom. I wonder this isnt a mistake.

As the Hands On Originals T-shirt print shops successful defense illustrates, religious freedom may thewrong First Amendment right at least in the case of photographers and cake decorators. (Caterers are probablyout of luck, at least as regards this line of thought.)

The strongestFirst Amendment defense for wedding photographers and cake decorators, I suspect, is not religious freedom, but freedom of speech.

Wedding photography is a service, but photography is also patently an art form, a form of communication. For the purposes of First Amendment constitutional law, it is a form of speech and speech, in First Amendment constitutional law, with very few exceptions, can be neither suppressed nor compelled.

An important caveat: Freedom of speech does not negate the principles of public accommodation and antidiscrimination law, which I support. I do not take the laissez-faire libertarian view that any business should have the right to refuse to transact with any potential customer or employee for any reason.

For instance, I dont believe that restauranteurs who are racists should have the right to refuse service to patrons of color or to relegate them to a separate counter, for instance. Nor do I support Christian business owners (or Muslims or Jews) with traditional beliefs about sexual morality refusing to serve individuals who identify as LBGT.

In saying this, Im going somewhat beyond federal antidiscrimination law, which prohibits discrimination against protected groups defined by race, color, religion, national origin, and disability, but does not protect individuals singled out for their sex or sexual orientation. (Discrimination based on sex and sexual orientation is prohibited in many areas at the state and local level.)

When it comes to discrimination and bigotry based on sexual orientation, both sides typically claim too much and concede too little. Christians should be willing to recognize and concede that while terms like hate and homophobia are overused to stigmatize all disapproval of homosexual acts, hatred and unjust hostility toward LBGT-identifying individuals is a real and important problem a problem too often found among individuals wrapping themselves in the mantle of traditional morality and traditional marriage.

To adhere to and to profess traditional Christian sexual morality, including the belief that homosexual acts are morally wrong, is not hate or bigotry,but hatred and bigotry are very much alive and well among those who profess to adhere to traditional Christian sexual morality.

The Catholic faith tells us that homosexual attraction and homosexual acts are intrinsically disordered, but it also tells us that same-sex attracted persons must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided (Catechism of the Catholic Church, 2358).

The Catechism wouldnt bother to say this unless such individuals had often not been accepted with respect, compassion and sensitivity and had often been treated with unjust discrimination.

When Christians meet with hostility and anger from LBGT individuals and their defenders, therefore, it behooves us to understand that behind that hostility and anger may often be painful experiences of mistreatment, rejection, stigma, ostracism and more. When this occurs in the Church, and still more when it involves the clergy, it can be even more devastating.

In view of this difficult reality, I believe Christians have a particular duty to oppose homophobia and gay-bashing in their own ranks and to stand up for dignity and respect for all human beings, including and even especially individuals who identify as LBGT.

We should also recognize that it is understandable for the state to take an interest in protecting LBGT individuals from unjust discrimination for holding, for instance, that peoples sexual self-identification or lifestyle, along with their race, color, religion and so on, is not grounds for refusing to serve them a meal at a restaurant, or for denying them other services at public accommodations.

Among other things, this would mean that a store that sells T-shirts cannot (and I would add should not) refuse to sell T-shirts to anyone because of their race or ethnicity, religion, sex, gender identification or lifestyle. A racist cannot refuse to sell to people of color, an atheist or a gay activist cannot refuse to sell to conservative Christians, and a Christian cannot refuse to sell to sell to atheists or gays.

By the same token, a T-shirt printer who printed a particular design or message for one customer should be willing to print the same design or message for a customer whose lifestyle he disapproves of.

In the case reported by the Becket Fund, though, another principle comes into play: free speech.

The Hands On Originals case highlights that not every kind of service in the public square is equivalent to buying a meal at a restaurant. Some types of services involve a form of artistic expression or speech that is protected under the First Amendment and these protections protect us all.

Free speech means a pro-choice graphic designer or commercial artist cannot be forced to print pro-life materials, nor can a pro-life graphic designer or commercial artist be forced to print pro-choice materials. A gay Web developer cannot be forced to create a website for a conservative Christian group, nor can a Christian Web developer be forced to create a website for a gay group.

This is a principle well understood and appreciated by the LGBT business owners cited in the Becket Fund press release, who supported Hands On Originals right to refuse to print pro-gay materials. All sides and all parties to this discussion should recognize the wisdom of Thomas Mores line in A Man For All Seasons about giving even the Devil benefit of law for my own safetys sake. (N.b. Like More, Im merely illustrating a principle, not comparing anyone to the Devil!)

Because photography is patently a form of artistic expression, Im troubled that the courts not so far found that a wedding photographer, or any other wedding industry professional other than clergy,has the right to decline to provide services for a same-sex wedding. Could this be because such cases have generally been predicated on religious freedom rather than free speech? I dont know, but I wonder.

I believe the principle that speech should be neither repressed nor compelled is so important that I would even defend the right of a white supremacist photographer not to photograph an interracial wedding. His views are despicable so despicable that I would want nothing to do with patronizing such a photographer, whether or not he had a problem with me but photography is speech, and speech should not be compelled.

The same considerations seem to me to apply to cake decorators, at least where the cake involves any kind of messaging, even figures of two grooms or two brides on the top. Im not talking about refusing to sell a cake to an LGBT person or couple, but to decorating the cake with a specific message.

I dont believe this principle should be controversial, although it is. In 2015 no less patently liberal and pro-LGBT a celebrity than Patrick Stewart offered a thoughtful defense for a baker who was sued for declining to put pro-gay messaging on a cake. The backlash was intense, obliging Stewart to clarify his remarks though he didnt back down on his opinion.

This line of thought would not, however, exempt caterers from catering the reception for a same-sex wedding. That would fall into the same sphere as a restaurant selling someone a meal, and would be regulated by applicable antidiscrimination laws.

Its no secret that free speech itself is under attack in many quarters of American life, notably in academia. The Hands On Originals case seems to me an important affirmation of a foundational principle that protects us all and is worth defending.

Read this article:
Gay Rights and the OTHER First Amendment Right - National Catholic Register (blog)

In campus clashes from California to Vermont, many defenders of the First Amendment say they see signs that free speech, once a bedrock value in academia, is losing ground as a priority at U.S. colleges.

As protests have derailed speeches by controversial figures, including an event with Ann Coulter last month at the University of California, Berkeley, some fear students have come to see the right to free expression less as an enshrined measure of protection for all voices and more as a political weapon used against them by provocateurs.

"I think minority groups and those who feel alienated are especially skeptical about free speech these days," said Jeffrey Herbst, leader of the Newseum, a Washington group that defends the First Amendment. "But the powerful can get their message across any number of ways. It's those who feel powerless or alienated who really benefit from enshrined rights."

On Wednesday, students at the historically black Bethune-Cookman University in Florida tried to shout down a commencement address by Education Secretary Betsy DeVos, who said during her speech, "Let's choose to hear one another out." Students and alumni had previously petitioned to rescind her invitation, saying she doesn't understand the importance of historically black schools.

While some cast the debate as a political battle, pitting protesters on the left against conservative speakers on the right, First Amendment advocates warn the line marking acceptable speech could slip if more college students adopt less-than-absolute views on free speech.

When UC Berkeley canceled Coulter's April 27 speech amid threats of violence, it was only the latest example of a speaker with controversial views being blocked from talking. Since the beginning of 2016, nearly 30 campus speeches have been derailed amid controversy, according to the Foundation For Individual Rights In Education, a group that monitors free speech on campuses.

In many cases, speakers have been targeted for their views on race and sexual identity.

At Middlebury College in Vermont, author Charles Murray was shouted down by students who accused him of espousing racist views. An event featuring Milo Yiannopoulos at Berkeley was called off after protests over his views on race and transgender people turned violent.

In the past year, other speeches have been disrupted or canceled amid student protests at the University of Wisconsin, UC Davis, Brown University, New York University and DePaul University, among others.

Today's students have developed a new understanding of free speech that doesn't protect language seen as offensive to minorities or others thought to be disenfranchised, said Herbst, also a former president of Colgate University, a liberal arts school in Hamilton, New York.

He sees it as a generational divide, a notion that's supported by some polling data. A 2015 survey by the Pew Research Center, for example, found that 40 percent of people ages 18 to 34 supported government censorship of statements offensive to minorities. Only 24 percent of people ages 51 to 69 agreed.

The literary group PEN America has also warned free speech is being threatened at colleges.

As students and administrators strive to make campuses more hospitable to diverse student bodies, some have wrongly silenced speech that makes certain students feel uncomfortable, said Suzanne Nossel, the group's director.

"The university has dual imperatives. It has to be a place that is welcoming and open to students of all backgrounds, cognizant of the barriers that impede students from marginalized groups," she said. "But that cannot and must not come at the expense of being an open environment for speech."

The events at Berkeley and Middlebury have drawn scorn from observers across the political spectrum, including some founders of the free speech movement that took root at Berkeley in the 1960s. Jack Weinberg, who was arrested on campus in 1964 for violating school codes on activism and sparked a wave of protests to change them, said he found "the whole thing despicable."

"When you suppress ideas, you also increase interest in those ideas," Weinberg said. "It's understandable that people want to stop it, but it doesn't work."

Still, some students don't see a problem with disrupting provocative speakers. Some say they're simply invoking their own First Amendment rights, while others say they're appealing to higher principles that take priority over free expression.

"If your goal is to come onto university campuses and put communities at risk, and your goal is to bash and spew hateful, racist rhetoric, then we don't want that," said Richard Alvarado, a junior at Berkeley who protested both recent speeches. "We as a community have a moral obligation to hold you accountable for it."

Colleges need to take a harder stance against students who disrupt speeches, some say. Republican lawmakers in Wisconsin are pushing a bill that would force state universities to suspend or expel students who repeatedly interfere with others' free speech. Similar legislation was recently approved in Virginia and Colorado, and is being considered in California, Michigan and North Carolina. The bills are modeled after a proposal by the Goldwater Institute, a conservative think tank in Arizona.

Others are calling for colleges to adopt stronger policies in support of free expression, and for primary schools to bolster lessons on the First Amendment.

"We are seeing things on an all-too-regular basis which would have been unthinkable just a few years ago," said Floyd Abrams, a prominent First Amendment attorney in New York City. "One can only hope that tempers will cool and people will come to accept the virtues of living in a society where even offensive speech is fully protected by the First Amendment."

Original post:
First Amendment backers see free speech fading at colleges - Clinton Herald

There has been plenty of recent analysis devoted to today's age of rage on campus. Much of it focuses on the left's reaction to Trump-style populism. But I have been writing about the ways, means and ends of this dangerous phenomenon for much of the past decade. Herewith are five takeaways for your consideration.

1. Progressives delegitimize rather than oppose dissenting views

Adults understand the mere rendering of political opinion (whether right or left) does not constitute a personal threat or present a dangerous environment to the listener. This is common sense stuff, but unacceptable to those who are in the business of degrading opposing views. These folks magnify the meaning of "harassment" or "threat" by claiming that even socially acceptable opposing opinions create such a hostile environment that they feel physically threatened and in need of refuge (i.e. a safe zone). Here, opinions at odds with progressive doctrine are molded into hostile acts. Accordingly, "I watch Fox" or "I oppose racial quotas" or "I believe in traditional marriage" or "I oppose women in combat" are deemed qualifying aggressive actions. The accompanying loss of intellectual curiosity and intellectual engagement is not seen as problematic for campus practitioners and their faculty enablers. This magnification process has led to many ludicrous yet widely reported cases of harassment on campus.

2. The most severe strain of this theology legitimizes violence as an acceptable response

You may have seen interviews with defenders of campus violence over the past year. Their intellectual argument (such as it is) follows a familiar path: because the words employed by the offender are deemed threatening to the recipient he/she has no choice but to lash out at the offender. The irony of college students screaming "Nazi!" or "fascist!" while demonstrating in violent (often criminal) ways seems lost on the afflicted. Note that even the Berkeley police department buys into this fiction. These supposed keepers of the peace are instructed to intervene in campus protests only when the threat of imminent physical harm is at issue; mere property damage rampages do not qualify. In other words, good luck to you and your nice new car on the Berkeley campus.

3. Few progressives see their provocative actions as antithetical to traditions of free speech

I often ask my '60s-generation friends to compare their social activism with today's campus contrarians. Most are unimpressed with the current crowd. No surprise here. The great cultural movements of that era (women's, civil rights, anti-war) were all about dissent and protest sometimes crossing the line into civil disobedience. Indeed, it was during this time that Berkeley became the "home" of the free speech movement. Fifty years later, it has become home to lawlessness and illiberal demands for the silencing of alternative opinion. What could be more damaging to speech than uninviting conservative speakers to campus or shouting them down once they get there?

4. Post-grad snowflakes are in a world of hurt

There is not much data devoted to what occurs when progressive millennials graduate from their isolation zones and are forced to deal with post-graduation reality. And I don't mean graduate school. I'm talking about the real world the one where you either sink or swim in the private marketplace where missing work, in order to demonstrate against some real or perceived social injustice, is decidedly not cool.

Some difficult questions come to mind: Do sit-ins follow the realization that there are no safe zones in the graduate's new workplace? To whom do you send the endless list of micro-aggressions perpetrated on you by your insensitive, mean boss? How to deal with one's "feelings" after suffering the slings and arrows of a poor job review? Where do underperforming employees go to feel better about themselves?

Of course, the lefty administrators and professors who have executed this P.C. hoax on impressionable young minds have no such problems. They did their job just punched the clock and turned out a whole new generation of victims and social justice warriors. But millennials should not expect them to engage in private sector protests as they tend to stay safely ensconced in their tenure-protected ivory towers. Just doesn't seem fair

5. What to do?

Numerous conservative pundits have urged the new administration to withhold federal funds from schools that serially fail to protect First Amendment rights. (The feds already have the power to withhold dollars from institutions that violate anti-discrimination laws.) We can only hope Mr. Trump will wield his big stick in support of speech.

A tough-minded response is required because our unfortunate cultural experiment in too many participation trophies (and far too little parental guidance) has backfired. The resulting generation of overprotected and self-absorbed adolescents is ill-prepared for life's myriad challenges and disappointments. Many of these same students "feel the Bern" because life is so unfair and because "Democratic socialism" sounds so cool. Lost in the process has been learning, social engagement, critical thinking, and personal growth at $50,000 a year to boot.

Ironically, the same institutions of higher learning that have presided over this silliness will soon be hitting you, parents and alumni, up for your annual giving contribution. A portion of this money will be used to pay the salaries of arrogant elitists who preach illiberal, hateful lessons aboutyou. Here's a thought: Maybe you should see that annual giving solicitation as your very own micro-aggression, and just say "no."

Gov. Robert Ehrlich is a Washington Examiner columnist, partner at King & Spalding and author of three books, including the recently released Turning Point.He was governor of Maryland from 2003 - 2007.

See the article here:
How to restore the First Amendment on campus - Washington Examiner

Raleigh, N.C. Family, friends, colleagues and state government officials on Friday remembered Mark Binker as a man who excelled in both his personal and professional lives.

There was hardly a dry eye in the A.J. Fletcher Opera Theater as Binker's 13-year-old son, Mason, began his remarks.

"My father is not in a better place," Mason Binker said. "He would not have cared if he were going to heaven. He would have stayed here with us."

Hundreds of people gathered to hear from those who lived and worked with Mark Binker, a former WRAL multimedia investigative reporter who died suddenly last month at the age of 43. The common theme was that his work, his voice and his presence will be missed.

Slideshows during the memorial service chronicled his life of 43 years, most of them showing him in the role he treasured even above reporting, as husband to Marla and family man, father of Mason and Max.

Read this article:
Binker's passions remembered: Family, first amendment - WRAL.com

Today the ACLU of Idaho will be participating in a court argument that is crucial for the future of corporate whistleblowers rights and their ability to photograph wrongdoing. The argument, before the federal 9th Circuit Court of Appeals in Seattle, is to consider the constitutionality of a so-called Ag-Gag law enacted in 2014 by the state of Idaho.

The other day I spoke with ACLU of Idaho Legal Director Richard Eppink, and he explained whats at stake:

A number of states have passed these Ag Gag laws. Idahos version makes it a crime to use a misrepresentation to gain access to, or employment at, an agricultural production facilityplaces like factory farms and slaugterhouses, but also encompassing a bunch of other places by the way they define this. Its aimed primarily at journalists and undercover investigators.

Idahos Ag Gag statute also makes it a crime to take video or audio recordings in these places without the owners permission. So, workers who want to document unsafe working conditions, investigators who want to document animal cruelty, people who are just visiting a farm and want to document what they seeanything like that would be punishable in Idaho by up to a year in jail. And youd have to pay twice the "damages" that were caused to the agricultural production facility as a result of your recording. This is specifically targeted at organizations like Mercy for Animals and the Animal Legal Defense Fund, which have exposed animal cruelty and put it on the Internet.

Eppink told me that the ACLU of Idaho lobbied against this law when it was in the legislature in 2014. They were joined by a wide spectrum of allies, including animal rights and welfare organizations, labor unions, and reporters groups. Also opposing the law were immigrant rights groups; in Idaho, as in most places, a lot of the agricultural work is done by immigrants, many of them undocumented, who are exposed to some of the most dangerous working conditions. This law would prevent them from being able document those conditions.

Nevertheless, the Idaho legislature passed, and the governor signed, the law. Aftewards, Eppink told me,

the Animal Legal Defense Fund contacted us to see if wed be interested in joining them in a lawsuit, which we decided to do. Its a facial challenge to the law both on First Amendment speech grounds and equal protection grounds, and has a diverse group of plaintiffs from the same groups that lobbied against the bill.

We won the first round when the federal district court struck the law down on both speech and equal protection grounds. The state appealed to the 9th Circuit, and now were defending that victory on appeal. Justin Marceau, a Denver law professor who works with the Animal Legal Defense Fund, will be arguing in Seattle on Friday and I will be there with him.

I asked Eppink: what about the argument that. while Americans have a First Amendment right to take photographs of things in plain view in public spaces, its also true that (as we describe in our Know Your Rights guide for photographers) private property owners have the right to set rules about the taking of photos and videos on their property? His response:

Certainly all of us have a right to control what happens on our private property. But remember that were not talking about the privacy of the home herewere talking about a heavily regulated industry that affects all of us: food production. And most of us dont have the state government coming in and jailing people and making them pay twice the business loss caused by bad publicity from release of a video of behaviors the public finds abhorrent. In the past weve always left damage settlements to private disputes between individuals. Certainly I can call the police if somebody is trespassing, but its another thing entirely to add criminal penalties when property owners say Not only were they trespassing, officer, but they took a video that I dont like!

Overall this argument is significant for us all because it has implications that go far beyond agriculture. As Eppink put it:

This law strikes at the core assumption that I think many of us had up to this point, which is that undercover journalistspeople like Upton Sinclair who wrote The Junglehave been serving an important role in exposing to the public whats happening in their food production systems and other industries that we enjoy the benefits of.

And all of us working against this law understand that agriculture is being used as the test case for this type of law, and that if it succeeds in withstanding constitutional challenge, and the courts say yes you can criminally punish anyone for taking video, then well almost certainly see this law spread to other industries like mining and even banking.

In other words, the risk is that well set up a society where businesses and corporations can have cameras on us everywhere we go, but we cant document whats happening in these places. It will be the property owners who by and large have the power of the camera to present their side of the story using video without the rest of us being able to present ours.

The 9th Circuit is expected to hand down its ruling later this year.

View original post here:
Federal Appeals Court Hears Crucial Case on First Amendment and Photography - ACLU (blog)