The commissioner even relied on publicity given to the case as related to the emotional damages to the couple; thus, any further advocacy, whatever the language, is problematic. (p. 38-39)
On Fri, Jul 3, 2015 at 9:32 AM, Michael Worley <mwor...@byulaw.net> wrote: > Mr. Lawrence: > > I doubt your reading of the case is correct because of the damages award. > True, as a lawyer, I could advise them in such a way that I could have them > advocate within the store without "technically" running afoul of the order. > > But the context matters here. First, the emotional and mental damages > indicates the commissioner wanted to prevent emotional damages to gays and > lesbians, and many of the technical paths of speech you mentioned would > impact emotional health. > > Second, pages 24-25 of the opinion have a number of statements that are > based in religious belief and speech (including statements outside their > shop), and political advocacy, which the commissioner relied on in drafting > the opinion. (The opinion is not easy copy-able, otherwise I would post the > quotes here). This is definitely a free speech restriction because it > limits the ways in which they can advocate. Your argument that I could > advise the client to advocate in different ways and not run afoul of the > first amendment, while perhaps correct, is irrelevant. Limiting the > wording of advocacy is limiting free speech. > > I will be unable to respond further until the fourth or sixth. > > Thanks, > Michael > > > On Fri, Jul 3, 2015 at 9:15 AM, Rosenthal, Lawrence <rosen...@chapman.edu> > wrote: > >> Mr. Worley: >> >> Under Oregon law, the bakers do not have the right to refuse service at >> their discretion. Why, then, should the First Amendment prevent a business >> from posting a sign containing an inaccurate description of the business's >> legal rights? >> >> The judge did not enjoin the respondents from advocating the repeal of or >> expressing disagreement with the Oregon law; the judge only required the >> posting of signs indicating that the establishment would comply with its >> obligations under the law. I do not grasp how this is any different from >> the types of communications on behalf of military recruiters that >> universities were required to make under the Solomon Amendment, which the >> Court unanimously held were consistent with the First Amendment in Rumsfeld >> v. FAIR as "incidental to the Solomon Amendment's regulation of conduct." >> >> As for the damages award, the judge did not award damages based on >> anything that was protected by the First Amendment. If the bakers had >> merely expressed their opposition to the Oregon law, there would have been >> a perfectly good First Amendment defense. But, when one violates a valid >> antidiscrimination law, whether by telling a customer "we don't serve >> blacks" or "we don't serve gays," one should not be surprising that legal >> and equitable remedies will follow. >> >> I don't know you, Mr. Worley, but I suspect you are a good enough lawyer >> that you could find a way to counsel a client to exercise the client's >> First Amendment right to oppose the Oregon law without encountering the >> kind of liability imposed in this case. >> >> Larry Rosenthal >> Chapman University Fowler School of Law >> ________________________________ >> From: conlawprof-boun...@lists.ucla.edu [ >> conlawprof-boun...@lists.ucla.edu] on behalf of Michael Worley [ >> mwor...@byulaw.net] >> Sent: Friday, July 03, 2015 7:34 AM >> To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics >> Subject: Baker in Oregon told not to advocate against public >> accommodation law >> >> Yesterday, an Oregon judge ordered bakers involved in one of the >> same-sex public accommodation cases to not publish, circulate, issue, or >> display "any communication, notice, advertisement or sign of any kind" >> which indicates a service "will be refused, withheld from or denied to, or >> that any discrimination will be made against any person on account of >> sexual orientation." >> >> http://www.oregon.gov/boli/SiteAssets/pages/press/Sweet%20Cakes%20FO.pdf >> (Pages 42-43) >> >> *** >> >> My thoughts: >> >> This means that the bakers cannot post a sign that says "We reserve the >> right to refuse service." However, that is not all. >> >> Given the bakers were also fined $135,000 for mental and emotional >> damages, I am sure the order would also forbid anything that could >> (arguably) cause emotional damage, such as: >> >> "We believe that the Oregon public accommodation law is a bad law, and we >> are working to get it overturned so we can select customers in accordance >> with our religious beliefs on sexuality." >> >> I disagree with this. The ability to argue that a law is wrong is a >> central part of freedom of speech (never mind freedom of religion). Most >> restrictions on freedom of speech until now have been cultural pressures or >> specific to a state function (like running a university). This is a legal >> mandate that a private citizen not say anything that a judge would see as >> making "discrimination" against people based on sexual orientation. >> >> *** >> >> To those who believe in the wisdom of public accommodation laws and the >> fine imposed: How can we accommodate political speech here? the ALJ's logic >> seems sensible if he fines them that much for emotional damages. >> >> -- >> Michael Worley >> J.D., Brigham Young University >> > > > > -- > Michael Worley > J.D., Brigham Young University > -- Michael Worley J.D., Brigham Young University
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