Tag Archives: compelled speech

Confirmation: It Isn’t About Religion

The Indianapolis Star, in one of its increasingly rare forays into what used to be called “news,” reported on a very interesting study investigating popular opinion about the pending Supreme Court case brought by a baker who refused to sell a wedding cake to a gay couple.

As most of you are aware, the baker–routinely described as very pious–has argued that forcing him to sell one of his cakes to a same-sex couples would not only violate his religious liberty, but would amount to “compelled speech.” That is, he argues that civil rights laws requiring him to do business with people he considers immoral are really compelling him to affirm his approval of that immorality.

The free speech argument appears to be a fallback, in case the Supreme Court doesn’t buy the religious liberty one. In any event, most people who are aware of the controversy see the conflict as one pitting respect for “sincere religious belief” against the rights of LGBTQ citizens to be free of discrimination.

As the study found, it really isn’t.

I vividly recall a conversation I had many years ago with a friend I knew to be a truly nice person. He wasn’t a bigot. I was Executive Director of Indiana’s ACLU at the time, and he understood the organization to be a defender of individual liberty and the proposition that the power of government (and popular majorities) to prescribe our behaviors is limited by the Bill of Rights.

He wanted to know why the ACLU didn’t think civil rights laws violated individual liberty.  Doesn’t “freedom” include the freedom to discriminate?

The study cited by the Star confirms the continued salience of his long-ago question.

People who believe businesses should be able to deny services to same-sex couples aren’t necessarily citing religious reasons for discriminating, a new study by Indiana University sociologists has found.

Instead, many simply believe businesses should be able to deny services to whomever they want — even though that violates civil rights laws that protect certain classes of people….

Slightly more than half of those surveyed said they supported a business denying wedding services to a same-sex couple, whether the business cited religious opposition to same-sex marriage or non-religious reasons.

Ninety percent of self-identified Republicans said that businesses should be able to choose who they do business with.

I’ve been in these discussions, and more often than not, people who believe civil rights laws deprive them of their liberty will say something like: “what about those signs that say ‘no shoes, no shirt, no service?” or “the government shouldn’t make the kosher butcher sell ham,” or “what if a Nazi asked the baker for a swastika cake?”

I will restrain myself from launching into one of my “civic ignorance” diatribes, and merely point out that civil rights laws do not deprive merchants of their liberty to refuse service based upon a customer’s behavior. Merchants also retain the liberty to decide what goods they will sell (if a menswear store refuses to stock dresses for sale to a female customer, that doesn’t violate anyone’s civil rights.)

Civil rights laws prohibit discrimination based upon the identity of customers who are members of legally specified classes. (FYI: Nazis aren’t a protected class.)

Do those laws curtail a merchant’s “liberty” to discriminate? Yes. So do laws prohibiting religious parents from “whipping the devil” out of their children, and a variety of other “sincere” behaviors deemed damaging or dangerous to society.

Here’s the deal–the “social contract.”

When a merchant opens a shop on a public street, he depends upon local police and firefighters to protect his property. He depends upon government to maintain the streets and sidewalks that allow customers to access his store, and the roads, railways and air lanes that carry his merchandise from the manufacturer to his shelves. In return for those and other public services that make it possible for him to conduct his business, government expects him to pay his taxes, and obey applicable laws–including civil rights laws that protect historically marginalized groups against his disdain.

The butcher, the baker, and the candlestick maker retain their liberty to advertise that disdain. They retain the liberty to lobby for repeal of civil rights laws. They retain the right to exclude people they consider immoral or unpleasant or just “different” from their social gatherings, their churches and their homes.

As I’ve often said, if you don’t like gay people, you don’t have to invite them to dinner. You just have to take their money when it’s proffered in a commercial transaction.Is that really an intolerable invasion of your liberty?

Who’s Talking?

As long as we’re on the subject of First Amendment Free Speech rights, a federal judge has just handed down a decision that illuminates another aspect of those rights.

As I explained yesterday, our right to free expression is protected against government interference. Usually we think of that interference in terms of censorship, of government shutting us down. But this judge’s decision–which rests on decades of settled law–reminds us of another thing government cannot constitutionally do: it cannot compel our speech, either.

(Reuters) – A federal judge on Friday struck down a 2011 North Carolina law requiring abortion providers to perform an ultrasound and explain it to a woman before having an abortion, arguing it violated the constitutional right to free speech of doctors.

U.S. District Judge Catherine Eagles found that a state does not have “the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term.”

If the right to free speech means anything, it means that we have a right to form our own opinions, based on the widest possible access to information, and to share those opinions with others, or not, as we see fit.

Being forced to recite a script and pretend it represents our own views, like being forced to affirm allegiance to a deity or a nation (see Barnett v. West Virginia Board of Education), isn’t just intellectually dishonest; it violates our most fundamental liberties.

Compelled speech is especially pernicious when it intrudes upon the doctor/patient relationship, which depends to a great extent upon the patient’s ability to rely upon the candor of her provider–to trust that her doctor is acting in her best interests.

The principle extends well beyond medical advice, however. If the government could tell professionals of any sort what to say, if lawmakers could impose “correct” communication on scientists, police officers, media figures… how would Americans ever be able to trust anyone?

How would we know who is really talking?