Thread by @CarolineMCorbin

The Supreme Court's argument in #303Creative v. Elenis is about to begin.

#303 atty arguing that her client is being compelled to say messages contrary to her conscience. Same-sex marriage is against scripture

To force her to create these websites is akin to forcing students to recite the pledge (among other things)

Q Thomas: Is your case ripe?

A: Her speech has been chilled, and is ready to take clients today and post her statement today.

Q: I've got a hypo. Most websites provide info on wedding (address, directions, etc) & aren't ideological. Standard info. Could someone who provides templates like this for others also refuse to provide those templates to LGBTQ couples?

A: It is still ideological

Q: So it is not the actual content of the webbing site that is problematic, it is that you are helping a same sex couple

A: If you require a speaker to celebrate a false statement, then you are compelling expression.

Q What is the message if it says the wedding is on this date
A: an invitation to celebrate a messaage
Q: But why is it your message. You are not inviting them to the wedding.
A: It is still the message of the writer

Q: what is the limiting principle? What about mixed race message? What if you think disabled people should not marry.
A: stumble stumble

Q Please show me a page on your website that shows endorsement of marriage
A: Our photo gallery. Our dating story Our special day. RSVP.
Q: It is not your photo gallery, it is theirs. It is the story of the couple, not your story. How is this your story

Q Barret trying to help: Let me ask about a heterosexual story Their wedding story goes like this-- We were both married, but we divorced. Would she publish
A: She would probably not publish it
Q It is about the message but not the sexuality of the couple

Q (Gorsuch talking over women) one can view these as either expressing makers or couple's point of view. I am confused bc sometimes Colorado agrees with you and sometimes not

Q: Again pressing on the hypo that two disabled people married is not a marrige I want to endorse
A: No there is no limiting principle. A speaker can refuse service to anyone whose story they disapprove.

A: the line is that no one can be compelled to express a message that conflicts with their convictions

(Oh, brave new world...)

Q : imagine only white children allowed in nostalgia scenes with scenes with Santa. To take a black child would undermine their view of nostalgia. That is their firm belief. Is the objection the same?

A: that's an edge case. the message is not in the photo

What?

A: No one should be forced to express a message contrary
Q: So every creative business can refuse customers?

Attorney is very squirrelly about who else is entitled to the right she is demanding for her client

Q Justice Kagan: Mike & Mary ask for a website w/ basic info, as long as asking for nothing problematic. Now Mike and Mark want the same site as Mike & Mary. And you say no. What is the speech your client is required to provide.

A: It is to announce wedding.

A; She is announcing a wedding contrary to scripture.
Q: But isn't that true of the people providing the chairs.
A: No no bc they are not providing speech

Note that atty pressing hard on the idea that if words then protected by speech

Gorsuch: There are some straight couples she would not serve

A: YES!

(Of course, refusing to serve them probably doesn't violate discrimination law)

Kavanaugh (trying again with his faux compromise, we aren't so difft) : artists are different, and I think the other side agrees. A lot of agreement on broad legal principles.

Q: So why is your client different
A: Art is different. This has speech. words, graphics, videos, symbolic speech.

A: I won't come back with caterer, but I might with a baker

Q: NO, don't say that, You are ruining my point. Cakes and food are the same

(He didn't say that)

Barrett: You are on the strongest ground with things she creates. But what about plug and play?

(Oh, she is going to try and claim reasonableness by drawing the line here.)

Barrett: Then why not plug and play for a gay couple.

A: She would still be creating the website. And it would be a website for an icky gay couple

Barrett: What if she is a songwriter, and the lyrics and there. Once the song is created, I will not license to same-sex couples.

A: No, bc song already in the stream in commerce. But she should NEVER have to sing at a same-sex wedding.

Jackson: but freelancer is not purporting to be a business for hire. She is providing customized things to anyone who pays here except for messages she disagrees with. But it relies on implicit message of endorsement. But is that message there in commercial transaction?

EXACTLY

Jackson: So restaurant. Don't want to make grandmother's recipe for people disapprove e.g. nonProtestants. Does selling a meal to certain endorse the clients?

A: No bc food is not speech.

Jackson: But conduct can be expressive

Jackson is making the point that what she is really objecting to is the implicit message of serving a same-sex couple, which is not necessarily limited to services with words

Jackson: trying to get her to understand refusing to photograph black people bc contrary to photographer's nostalgia message is analogous bc it conveys a certain message and atty not quite getting it

NOW switching sides!

Opening statement: the antidiscrimination law is targeting conduct and not speech, and therefore subject to O'Brien test, which it easily satisfies.

YES, YES

Atty: The free speech clause exception is sweeping bc would not be limited to religious objections but to any racist, sexist, etc beliefs.

Court should not upend longstanding anti-disc law

Thomas: asking about history of public accommodations law. Sure they've been around forever and as an originalist I should support it. But have they long rejected free speech exceptions.

A: There is no history of speech objections to it.

Thomas: Sure for boat businesses, but

A: We don't we see a history of public accommodation laws carving out exceptions for speech. There is no case from 150 years ago addressing this exact issue

Q What about City of Fulton (from this century? dude?)

Q You rely on Rumsfeld but the speech was not compelled but the conduct was. So it is distinguishable

A; First, there was speech emails. But the purpose was equal access.

A: does it make a difference in the real world if a website has to serve same sex couples but is allowed to say that it doesn't like same sex marriage? (?)

Bathroom break during Alito questioning

Barrett: We don't have a real record on how the law would apply in various permutations

Oh, a potential dodge?

Alito is trying to figure out how to make a business outside the scope of public accommodation law.

Does a Jewish website have to create a website for an Jewish and Christian couple that it disapproves of

A: yes, They can laud all Jewish marriages but it cannot refuse service.

Not sure what this line of questioning accomplishes

Q Can a photographer refuse to take photos for a Jdate for Ashley Madison, for for KKK?

A Of course not, bc being a racist is not a protected characteristic

Q Can refuse to do a quote from Obergefell bc refuse for everyone?
A; Yes
Q: What if want website to say God Bless this Union, which would only refuse for same-sex couple

A: Direct speech gets trickier, but the default rule still applies

Why not just say it is still subject to intermediate?

Q: Given what Kennedy Obergefell said, is it fair to equate opposition to same sex marriage to oppostition to interracial message

A: YES as how the law applies. Plus Kennedy suggests should not discriminate in provision of services

Q: What if provide customized wedding vows or wedding speeches, can they be forced to write vows or speech that espouse things they loath

A: No, bc not protected characterstic, but cannot discriminate based on protected characteristic

Sotomayor: this would be the first time the Court would say a commercial business open to the public serving the public that it could refuse to serve a customer based on race, sex, sexual orientation.

Mic drop

Q: but if everything is customized, doesn't that change everything bc forcing someone to create
A: No

Q: What about free lance writer, does someone have to do PR for scientology
A: free lance writer may or may not be a public accommodations
A: even so, if offer service, must offer to all
Q: OK defines category as press releases
A: changes category could refuse all religious PR

Q: trying to back him into a corner by a hypo that will do some religious PR but not other religious PR

A: trying to explain that if do religious PR, must do all, but it could simply decline to do all religious PR, like the 303 Creative could refuse to do all wedding websites

Sorry, got too angry there for a minute to document #303Creative oral argument

Q Does publishing house have a first amendment right to select what books it publishes

A: But a publishing house is NOT a place of public accommodation

Q But if it were

A: Something something, O'Brien applies

Q: Do you agree this involves compelled speech like the two law professors said

Q: Plus stipulations

A: But if refusing not because of the content of the website but bc of who is requesting the website, then that is not a matter of compelled speech.

Q: What if paper is only promoting LGBTQ marriages, can it refuse heterosexual wedding announcements. Or a gay rights org?

A: probably not a public accommodation

Q: assume it is

A: unusual, but if it is a public accommodation, cannot refuse based on protected characteristic

Jackson: Reminding us that often opposition to interracial marriage WAS based on religion.

Thank you Justice Jackson

Jackson: Back to God Bless America. Isn't part of the problem deciding to whom to attribute message. If it becomes clear that it is not the company's view, don't we make things much easier?

Jackson: Maybe first amendment protects designers ability to refuse same-sex website only if clear that it would be their own message

A: No evidence that anyone would look a wedding website and would conclude that it is the speech of the designer and not the couple

SWITCH again

New attorney to explain how Rumsfeld controls the outcome. Held that compelled speech was OK bc incidental to a regulation of conduct

Q CJ Roberts: But this case is different. All they had to do in Rumsfeld is give them an empty room.

A: No, they also had to send emails and make announcements-- clearly speech

Q Here's where the military recruiters are going is very similar to here's where the wedding it taking place

A: Exactly, the law schools also had sincere moral objections

A To distinguish Hurley: Is the burden on speech truly incidental to the conduct. The answer in Hurley is no, while the burden is speech here is truly incidental to not discriminating

Q Sotomayor: I don't know if anyone looked at the websites. None of them were about celebrating the marriage. They were all pretty much informational. Bring you dancing shoes. Our date. The ceremony. The reception. Dinner menu. Location. Nothing about celebrating or God

Gorsuch: But she doesn't always discriminate against gay people.

Q What about my photo hypo. I won't do customized Santa photos with black children

A: We agree. That absolutely illustrates the risk of providing the sought after exemption. Also can refuse to take headshots for women if oppose women business leaders.

Alito: Speech can be compelled so long as the person is not deemed speaker

A: That is not the line. The line is whether it is incidental to regulation of conduct

Alito: Is there any limit to how a state can define a public accommodation?

A: I will accept the premise that there are some limits

Alito: You all seem to think if public accommodation law then no free speech problem.

Q: what is limit

A: hard to articulate, but cannot generally hold company out to the public but then refuse to serve one protected group is the type of selectivity that brings it out public accommodation law

Q What about if forced to say God Bless this Union?

A: Maybe then there the burden is not incidental but more direct. But that is not this case.

A: Court can reject pre-enforcement question but noting that in the future there may be a valid claim

Q what is the worse case scenario

A: Will allow schools to discriminate based on race bc can argue that teaching black children sends certain messages.

Q: you think it as about status and message. 303 Creative only message. That's the right way to think about

A: Is the burden incidental to a conduct regulation that say cannot turn people away based on status

Gorsuch: Not status based! She will deny everyone a same-sex wedding website, even if the person buying it is straight.

Oh please, I thought we over this

Jackson: What if designer has right not to expressly proclaim marriage, but what is trying to do is say is has right not to implicitly endorse same sex marriage

A: That maps out onto what we are suggesting, and Rumsfeld rejected the idea of implicit messages

Rebuttal now
Sorry, I'm out of gas.

Case is submitted. Thanks for following along.