Nougat

Nougat, 1 year ago

I am not a lawyer.

These signs are surely in response to the recent US Supreme Court ruling which allowed a website designer to refuse to make websites for same-sex weddings.

First, churches are religious; Trump supporters are political, and not religious. In the US, religion is a "protected class", but political alignment is not. But traditionally, political alignment or part affiliation is not discriminated against, even if it is federall legal to do so. (Various states may have their own clauses making political alignment a protected class in certain contexts, I'm not sure.) Also important to this discussion is that sexual preference is not a protected class federally, although I know that many states have enshrined protection for sexual preference in their own state laws.

If a case were brought about discrimination against Trump supporters because of these signs, in a jurisdiction where politics was not a protected class, I should expect that that case would fail, under current law. But just like SCOTUS is highly political right now, lower courts are, too, especially lower federal courts. It's anybody's guess as to whether a given judge would actually adhere to existing case law.

For the religious side of these signs, it gets interesting. As above, SCOTUS has ruled that a religious business owner can discriminate against customers based on the business owner's "religious disagreement" with a position held by the customer, presumably where that disagreement does not overlap with a protected class.

And there's the rub. Religion is a protected class, so it should be prohibited to discriminate against someone for their religious position. This, however, really tips the scales in favor of the religious: the religious business owner can discriminate on the basis of their own religious belief, but no one can discriminate against them because of that same religious belief. To me, this seems to tread very heavily on the Establishment Clause of the First Amendment of the US Constitution:

Congress shall make no law respecting an establishment of religion ...

"Congress," in this context, has been interpreted by the courts to mean more generally "the government," at any level. The recent SCOTUS ruling gives a religious business owner the right to discriminate on the basis of their religion, but the right of other people to discriminate against that business owner on the exact same basis remains prohibited. Again, I am not a lawyer, but that seems to be clearly in opposition to the Establishment Clause.

All of this is interesting, but none of it is cause for concern.

What is cause for concern is the foundation of Obergefell, which made same sex marriage legal in all of the US. That basis is that the only difference between opposite sex and same sex marriages is the sex of one of the people in the couple. An argument I recall from the time was that prohibiting same sex marriage is unconstitutional, because to do so would be discriminating against someone on the basis of sex - which is a protected class. However, that does not appear to have been mentioned in the court's ruling.

No matter the reason, if it is unconstitutional to discriminate against same sex couples in the context of their getting married in the first place, it should stand to reason that it would be unconstitutional to discriminate against those same sex couples in any other context. Reason does not appear to be this court's strong suit; they have decided that the rights of religious people to discriminate on the basis of their personal and individual beliefs "trumps" (pun intended) the rights of people (religious or not) to not be discriminated against.

This is a "canary in a coal mine" to overturn all manner of previous courts' rulings: Obergefell (same sex marriage), Loving v Virginia (interracial marriage), Griswold (access to contraception), Lawrence v Texas (legalization of homosexuality), and certainly others.

Again, all of this seems to prioritize religion, which is in clear opposition of the Establishment Clause.

Nougat, 1 year ago

This morning's news about the r/mildlyinteresting team being reinstated and unsuspended by a different admin - that's confirmation that there's internal conflict going on. Protests don't work, my ass.

Nougat, 1 year ago (edited 1 year ago)

Companies fiddling with speech is perfectly legal. No one is obliged to give a soapbox to anyone. Companies curbing speech they don't want to host is not an infringment on speech, legally (in the US, at least).

An anaolgy might be: You offer your front yard for people to put signs in. Someone decides to put a Nazi flag sign in your yard. You are within your rights to remove that sign, even though you made a general offer for anyone to put signs in your yard.

People (again, in the US) very often conflate this kind of situation - a private entity curbing speech that they don't want to be associated with - with the First Amendment of the US Constitution (my emphasis):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Free speech, in the US, is about whether Congress, and as has been interpreted by the courts, the government generally, may abridge the freedom of speech. The government may not.

Even so, free speech is not absolute. It remains against the law for individuals to use speech to incite violence, or to incite an emergency reaction where no emergency exists ("Fire!" in a crowded theater), for two examples. Another example would be communicating classified information to people who are not authorized to have said information.

There remains a real conflict about free speech, and it's the elmination of the commons. When the Constitution was written and ratified, the First Amendment protection of speech was more effective, because the way you would get your speech to a large number of people was via distribution of pamphlets and just speaking aloud in public spaces, where passers-by were walking. The landscape is very different today, where "public" messaging happens on the conduits provided by private companies - who, as we've learned, are not legally obliged to carry that speech. In fact, those private companies operating "open forums" can be held responsible for failing to moderate speech which runs afoul of legal limitations on speech.

The internet is definitely a huge change around speech, but the degradation of public spaces brought on by shopping malls - which are private property - had the same kind of effect. The fact that we tend to spend more time in our private homes, travel in the bubbles of our private vehicles, and do our personal business entirely on private property effectively reduces the public space available to exercise our own free speech effectively, or be exposed to others' speech similarly.

Nougat, 1 year ago

Well, this comment chain started with:

That’s where tech companies start to get a justification to fiddle with speech.

Which implies that companies need a "justification," which further implies that companies "fiddling with speech" needs to be "justified," as though "unjustified fiddling with speech by companies" is, or should be, disallowed.

Later, you said:

Free speech usually means that you have freedom to express yourself, ...

That might be colloquially accurate, but it's misleading in the context of private companies acting as platforms for speech, in the US (I know I have beat that drum plenty, but it's necessary).

Infringement of freedoms is met with legal consequences. Since private entities are not oblligated to be a platform for any speech, whether that's a forum on the internet or other people's signs in your front yard, there are no legal consequences when those private entities curb the speech in the space they provide for speech. The discussions around this situation generally carry a subtext of "something should be done about this," and because of the conflation of colloquial vs legal "free speech," it's easy for that "something" to feel like "companies shouldn't be able to do that," with legal consequences.

Who is talking about it being illegal?

People rightly recognize that there is a problem with the diminishing ability for people to express themselves, and conversations about that usually misidentify the problem as being with the operators of private spaces where so much speech is today exercised. Any solution which grants and protects individual rights is necessarily a legal solution. So, while maybe nobody is saying the words "It should be illegal for companies to curb speech on the platforms they operate," the discussion is about a legal remedy.

I was trying to describe that the problem is more likely the degradation of the public commons. The relative absence of public spaces in which speech can be effectively transmitted drives people's speech to private spaces, and those private spaces come with much greater limitations on speech. While I don't have a specific solution to offer for that problem, I have to think it must include creating or reinvigorating public commons.

Nougat, 1 year ago

This is a historically notable letter.

Nougat, 1 year ago

I'll go and look at how my recent comments and submissions are doing, but that's more to get a sense of how my outlook aligns with the outlook of the general readership. And when the alignment is off, I'll look at other comments to see what is getting traction.

By this process, its become clear to me that the outlook of Reddit The Userbase (as opposed to Reddit The Company) has become much younger in recent years. All too often, when my positions are heavily downvoted, neighboring comments expressing more popular (populist?) positions make me think, "Yeah, I used to think that ... thirty plus years ago."