303 Creative And The Hidden Costs Of Protecting Free Speech

>> Tom Church: This is the libertarian podcast from the Hoover Institution. And today we're discussing two Supreme Court cases on free speech. I'm your host, Tom Church, and I get to talk today with the libertarian himself, Professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution.

He's the Laurence A Tisch Professor of Law at NYU, and he's a senior lecturer at the University of Chicago. And, Richard, I feel it's a little bit déjà vu we're back here to discuss the results of two Colorado cases on free speech. And for some reason, it's always Colorado on free speech.

I think we'll start with the 303 creative case. It's another case of a business owner with a christian background who was unwilling to make, in this case, marriage websites for same sex couples. Now, Richard, a couple of things to unpack here. First of all, I mean, obviously, I'd like you to take us through the case, but how does this not involve the Masterpiece Cakeshop case we had from 2018?

And then I'd also like to know, take us through the dissenting views and explain to me how conduct could be different than speech or expression?

>> Richard  Epstein: Why do you ask all the hard questions, which indeed these are? The situation here was you were trying to make websites, and unlike the Masterpiece theater case or Cakeshop case, what happened is she basically sought to get a clarification of her status prior to the time which she opened her website.

She was worried of having individual people come into the shop complain that they were discriminated against, making a reference to the commission, and then having to face the same problem that you had in the Cakeshop case, namely, being subject to all sorts of cross-examination and abuse. So in that particular case, instead of having a clear statement about what you may or may not do as a website designer with christian beliefs, what you did is you got a long discussion of whether or not the Colorado commission itself had behaved badly when it compared her to somebody who wanted to suppress speech and was responsible for the Holocaust and things like that.

What Justice Kennedy did is he looked at the conduct of the Colorado commission, found it execrable, and said, we can't let this stand. And then he says, I remand the case for conceding. And the problem you have is you're going back before the same board, which basically said, we hate your guts, and now they're gonna be on good behavior.

But you know that the bias is there. And so putting the case forward where she's just asserting the right and not having to worry about any particular case against it does have the real effect of sharpening the issues and making it pretty clear that this thing is going to be up and down.

Now, one of the huge problems in this case is to try to figure out exactly what it was that she was prepared to do or not to do. And it gets very sloppy. Adam Liptak wrote an article, the title of which was, okay, The Court Says Not To Serve Gays.

You read the first sentence, it was very different. It says that she, out of conscience, need not make a wedding cake or design a website for somebody whose beliefs are inconsistent with her own on matters of religion in church, right, with much narrower kind of holding. Then it becomes the question is, is this directed towards gays, or is it directed towards everybody?

And I had a recent debate with David Cole head of the ACLU, and it turns out there's a lot of ambiguity here. He said that it was perfectly okay to have a general prohibition applied to Paul, all individuals, saying that, I won't make gay wedding cakes, so that it would apply if somebody who was perfectly straight wanted a gay wedding cake for friends of his.

And I think that's right. And then you ask, well, what did Laurie Smith say? And of course, she would not make that cake for anybody, so she should have been caught by that safe harbor. But then the question is, well, it was a gay couple that might ask, and if you turn them down when you're prepared to take somebody else, it's kind of a form of invidious discrimination.

And you can't possibly say that the message matters because it's the identical matches between the two of them. And so I think the sensible way to read this stuff is what she said everywhere. She's prepared to serve everybody on the same terms and conditions. So it's not a discrimination case.

What she's drawing is a categorical withdrawal of her services in terms of one kind of speech. That then gets you to the third distinction, which I think is quite zany, which is, well, is this speech or is this conduct? In the opinion, it was stipulated to be speech, which is why it was when Gorsuch got the case, he began with West Virginia against Barnett, which essentially says, if we have one star in our particular firmament, it's the government can't coerce anybody to engage in speech.

And since she was engaged in speech by stipulation, it turned out that she would be exempt from that stuff. On the other hand, somebody will say, well, they are basically asking her to put a template up. They'll fill in the blanks. So all we're asking you to do is to engage in conduct, and we'll supply the content on your website.

And, well, you know, that's a pretty clever line of distinction and so forth. And what happened is Justice Scalia, not Justice Scalia, Justice Gorsuch had no patience with that sort of hairsplitting. He says what you're asking her to do is to use a form that you prepare and relax against your will, and it's a form of a speech act to have you put this on your website, even if somebody else is the person who falls in the blank.

So I always thought that the Gorsuch decision was quite limited in terms of what it did and that it was unexceptionally correct. And I put the point in a slightly different fashion, which is, you look at this as a market, and one of the things you want to ask is there a market failure that justifies the intervention of the civil rights laws in this particular case?

And it turns out she probably represents people with fundamental Christian beliefs, a tiny, discrete, and insular minority. A favorite phase from the Carolene Products case, and she won't do it. But there are probably 10,000 bakers and 10,000 website designers who eagerly search for this business. So the question, as far as I can see, is you've got everywhere where you want to go, and, you know, you don't want to basically work with somebody who's hostile to you.

Why do you let them refer the case to the Colorado commission and get your cake from somewhere else? On a balance of equities, the appropriate thing to do is to live and let live. At which point the challenge comes, well, what about all anti-discrimination laws? I said, well, that was not an issue in this particular case, and it wasn't because it's very instructive.

Somebody who might have even been given the right to discriminate is not gonna turn down gobs of business because somebody who is gay wants to buy something for a birthday party which has no religious significance at all. And so I said, the market pressures will keep all these things open, but what if somebody wants to do this?

And then you can cite the case. Well, there turns out to be a restaurant in Travis City that doesn't want to do this. And remember what happened with Ollie Barbecue in the middle of nowhere that didn't want to do it. And my attitude on all of those cases, if 99.9% of the people are willing to serve you, don't think that you got a black eye because there's 0.01% of the people who won't serve you on some things, knowing, in effect, that they're going to take a huge hit one way or another.

Even in this particular case, she loses this case, the amount of organized protests, abusive efforts to crash the website, death threats, and so forth were lodged against her. And certainly you could easily see many people saying, well, I'll boycott that particular business cuz I don't approve her decision with respect to gay wedding cakes and so on.

And she's prepared to live with all that and the Bright side of it is they're probably a very small fraction of the market, but significant to her of people who say, this woman is being abused on all sorts of things. I think it's important to give her my business to show that I think that the religious autonomy ought to be kept there.

So there are a lot of these cross conditions. And I basically think that the single point that gosage makes first is the strongest one, namely, don't force people to say things that they don't want to do if it turns out they have a religion reason for it particularly.

And yet this case, paradoxically, wasn't decided on the religion course, which is yet another odd feature of the case. So there's a lot going on here, but basically the decision was correct, and the critics should find some more worthy talent, rather more-

>> Tom Church: Richard, I wanna follow up on something you said, which is you had this discussion with the head of the ACLU.

I can remember a time when the ACLU, the phrase I remember is you don't have to agree with the person, but we do defend the right to say what they are going to say. But that doesn't seem to be the case anymore, and I just wanna know if you have any insight.

Well, and if that's true, if the ACLU has moved away from that and why they have. And, I mean, they somewhat representative of a lot of formerly pro-free speech, pro-liberty organizations, some on the left, some on the right, that have moved away from that. Why do you think that's happening?

>> Richard  Epstein: First of all, you have to remember, this is an organization started by Morris Ernst in the 1930s. And trying to fight religious bigotry, the Catholic Church, mystic Father Coughlin, huge amounts of racial stuff, the KKK. Essentially, defending freedom of speech for everybody was heroic situation. And the phrase that you're referring to is, I may disagree with you, but I will defend your right to speak.

What happens is this thing got a transition starting around 1990 with the famous case of Smith against the employment commission. And what happened was Justice Scalia wrote what I regard as one of the most dreadful opinions ever written. A decision which says any neutrally applicable statute can be applied to religious and non-religious people alike so long as it's facially the same.

And so the obvious hypothetical that comes up is you say to a Jewish person or a Muslim person, we're serving pork in the infirmary today or in the lunch habit, and we're doing it because it's nutritious. You have to eat it along with everybody else, and that was the position that he took.

And there was just an immediate left right response to this thing. How crazy can you possibly be? The essence of living in civilization is to make accommodations so that somebody who has a huge bee in his bonnet can be protected against abuse. Why does the basic prohibition continue to work?

So you can serve to everybody pork in the military who doesn't object to it? Well, the ACLU signed on to that. But then by 2012, they were becoming more authoritarian, more interested in affirmative action, more interested in race discrimination than they were in free speeches. And in 2012, you had the question as to whether or not hobby lobby and similar organizations could refuse to pay for contraceptions with respect to their female employees and to do so out of religious beliefs.

And you remember there was a huge hullabal over that case. And Justice Alito wrote an opinion which says, yes, you're entitled to do that. And his response was, if you have a wage that you receive from this, you don't have to get your contraceptives through the employee who doesn't wanna supply it.

You could join any one of 20 medical programs or dispensaries and get relatively cheap and effective contraceptives. And the employer is willing to do that, live with that. And of course, the Obama administration was not prepared to live with that. And what happened is, at that time, the more authoritarian ACLU, what they did is they flip side.

And they withdrew their support for the Religious Freedom Restoration Act, which was originally dealing with practices by individual. And they could not abide by this when it started to do with practices by large firms, whereas to me, both of them are part of the same piece. So at that point, they start on this thing, and they become champions of affirmative action and so forth.

And so all of a sudden, colorblind norms don't mean a hell of a lot in this world. And they become essentially, systematically opposed to certain forms of speech and certain forms of religious practic, and it's a very difficult situation. They've had splits within their organization on what to do.

But I think on this one, they are very far to the left, and they come out on a side which I think is sort of indispensable. When I started off as a civil libertarian, I always thought that the American Civil Liberties Union was talking about speech and liberty in that area.

But they would also adopt a libertarian approach everywhere else. So when I mentioned to David, well, you get a decision like lockdown against New York. You could see his face drop at the thought that anyone might think that this case was rightly decided, which of course I do, because the regulation in question was neutral in form.

You can't work somebody more than ten hours a day. But everybody knew what was going on in that case, it was a disparate impact case. The union workers worked two shifts under ten hours each. The non-union bakers worked one law shift, I say from 6 in the afternoon to 9 in the morning, 15 hours.

But the secret was that they slept on the job between the baking of the break at the night and then the packaging of it in the morning. And how do we know that? Because the provision before the section on the maximum hours law, one that required adequate ventilation in sleeping quarters on the job, that was what was going on there.

And the interesting thing, nobody denied that that was a health measure, and so nobody challenged it. So if you actually look at the case, the healthcare anti-competition side is pretty well done. And what happens is you are now not allowed to challenge under the modern loop neutral legal regulations that are designed to shift wealth mildly from one side to another.

Go back to what we just said about the Religious Restoration Act. That was exactly the same thing, a neutral law with a real bias and it turns out you could get that in the academic arena. And my general position is that all liberties are of a piece. And you will find it very difficult to defend liberty of contract, rather liberty of religious behavior, if you don't defend religious liberties as part of a general principle of freedom of contract and general liberty of contract.

So I do take that position, I'm not ashamed of it. But what's happened is, in modern scope, you may be allowed to say certain things. But people are allowed to pillory and to denounce you for taking a position that liberty is as good in economic affairs as it is in religious affairs, and that the justifications for restrictions may be thought of in both cases.

I'll just give you one. You're a religious person and you believe in child sacrifice. You can't kill your own children, you certainly can kill the children of somebody else. The principle limitations on freedom against the use of force and fraud apply to religious liberties as well as they do to economic liberties.

Which is one of the reasons why it's so important to have a uniform theory that covers both kinds of cases. And the modernists don't want to do any of that stuff, and they make a tangle out of everything. So I regard Gorsuch as having gotten the right opinion in the very narrow area.

If you're asking me as a matter of first principle, I don't think you should have to defend that as an exception to a general rule on government discrimination. I think the anti-discriminis should only apply where you have some kind of a public conveyance, common carrier, public utility, and I could explain why.

Here's the answer, Tom, in one sentence. When you wanna get on an airplane, nobody wants to see your resume. They wanna make sure you don't stink up the joint. When you get a job, everybody wants to see your resume. They won't take you in order of first Come first serve.

So what happens is the ability to have an effective non-discrimination law on airlines where there's nobody opposed to their imposition is very great. To try to do this in employment markets turns everything into pretzels. Because the needs of the employment industry are so much greater that you have to be able to distinguish which motives are good and which motives are bad.

And when you actually watch the way in which this stuff plays out over the years, nobody is really particularly good at doing this. An open market will, in fact, produce more opportunities for everybody by expanding the size of the pond. And one of the things that David said in that debate is always instructive.

He's saying, you're willing to allow white people to discriminate against black people? I said, no, I'm willing to allow anybody to pick the customers whom they want for their business. And that includes black firms as well as white firms. And the question is, how much separation will you see?

The rough answer is, in small family owned business, you'll see a lot of it. In large public corporations, you'll see very, very little. And that's generally a perfectly sensible outcome. So please tell me where you think this system is gonna break down in practice, when it expands the size of the pie, increases total wages of everybody else.

And doesn't have a definite skew in one direction or another. I don't think you could answer that question, which is why it is when people ask me to generalize, they kind of dare me. Are you prepared to go beyond the particular situation in creative 303? My answer cheerfully is yes.

>> Tom Church: 303 creative. I do want to ask you very quickly about the other Colorado free speech case because I think I was maybe a little surprised to see the result. That was at 7-2 against Colorado, very quickly. It's a case where a man made very threatening messages to a woman causing her intense emotional distress.

And the Supreme Court ruled against the state that it had held against the man making these comments. And I guess I'm just a little bit, well, Richard, I need to know very quickly, why do you disagree with the 7-2 majority here in this case?

>> Richard  Epstein: Well, I mean, I think they've lost their marbles, essentially, to be more precise about it.

This fellow decided to hurl abusive messages in her direction. And then what she did is she tried to change the configuration of a website and he kept doggedly producing it. He tried ten avenues of attack, and generally speaking, one of them would succeed. And by the time he was done with his attacks, this woman was an emotional wreck, psychiatric difficulties.

Withdrew from her friends, was afraid to go outside and so forth, suffers a kind of very acute harm from emotional distress and a lot else in addition. And the question is, why not prosecute him? And when they said, this is on the mens rea side, on the mental state, what we did prove was that she suffered.

But we did not prove that he wanted her to suffer, knew that she was going to suffer, or had reckless disregard about this. And for a criminal case, you have to prove that kind of a mens rea. And since you haven't done that, and this is a speech case, it turns out they have to remand the case and try it over.

What I think about this is that the common sense approach to intent is very clear. The Romans said it a long time ago, is your exterior actions indicate your interior states of mind. And there's no way on God's earth that somebody who didn't have a malicious intention would go hounding this woman day after day, side after side, dirty tick by dirty trick.

And so I think, in effect, to sort of say and to give them a chance to get on the stand, gee, I did not mean to hurt her. Is no better than having somebody viciously kill somebody with a knife and say, gee, I didn't mean to kill them.

I just thought that this was good, clear fun. And so it's just giving a royal road to evasion. And you could imagine, they try this again, he gets up and starts to testify. You have to prove your case beyond a reasonable doubt. And it turns out that falsehood could dominate over truth.

And so this is a classic illustration of. How do you read the first amendment, right? Well, you have to treat the word freedom very seriously. And as I said, it's a unified theory. Freedom of action, freedom of speech, freedom of testation, they're all governed by more or less the same kind of rule.

And what happens is, when you're dealing with freedom, it does not include the ability to use force or fraud or threats of force against other individuals. And now you think about this for a second. Fraud and threats of forces are all speech acts or physical acts that are akin to speech act.

I wave a gun in front of you and I don't speak. Am I threatening you? Of course I am. And so what you need to realize right from the get go is that the protection of freedom of speech has to be subject to limitations on the use of force and fraud, which was going on in that case.

And then it's a technical issue as to whether or not if you put the additional mental requirement, as they did in this case. What's going to happen? You're gonna get massive evasion. And so you simply do not allow that. What's the important thing you wanna defend? Well, you want to defend things like 303 creative.

You want people to be able to put up a website and not be forced to deal with people whom they find disagreeable for whatever reason. Some principles and some not. And the safe rule with respect to this is no gay Baker has to take some rabid customer who believes in evangelical truths.

And au contraire, what happens when you have an anti-discrimination law is they always say there's some grounds on which you can discriminate and some that you cannot. So if you look at the Colorado statute, it uses the word creed, but that doesn't mean the same thing as religion, which is not quite put in this particular statute.

So then you get these learned arguments as to whether or not gay bakers can turn down people with religious orientations. And the answer is they can because they find their work offensive. But the other way around, there's this protected category, and you can't do it. So you get these asymmetrical debates, and you just keep figuring out what categories to add.

You can't discriminate on the grounds of height or on weight or on prettiness, or on obsessive obesity and so forth. And the more you do of this, the more clear it is that in many cases, the grounds for discrimination are quite rational, and the government doesn't know how to separate those things out.

So the counsel of wisdom is the market is redundant. Don't start to impose these limitations. Don't have these endless blow ups in individual cases. If somebody is turned down at one place, they could apply to another. And if you don't have a big anti-discrimination law, the added effect is the market will bigger in terms of the number of firms out there, so that the opportunities are greater.

So just to give you the numerical advantage, which market would you rather live in? A market with a million firms, none of whom can discriminate, or a market with 1,200,000 firms when 1% of them disagree. You could actually have greater opportunity in a market that allows the marginal firm to discriminate because of the increase in the overall size.

And what typically happens is the defenders of the various civil liberties rule never look at the ex ante incentive effects on firm entry at the beginning of an arrangement. And somebody like myself, like you, who are trained in economics, knows that getting into the business is very important, along with how you run it.

And yet that particular dynamic element is utterly ignored by the defenders of the modern anti discrimination laws that will do it for this week's episode of the libertarian podcast with Richard Epstein.

>> Tom Church: As always, you can learn more if you head over to Richard's column. It's the Libertarian, which we publish on Defining Ideas at hoover.org.

If you found our conversation thought provoking, we ask you to share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church. We'll talk to you next time.

>> Speaker 3: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition.

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