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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the Free Speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am as always your host, Nico Perrino. And today we have a returning guest on the show, David Hudson. David, welcome back to the show.

David Hudson: Thanks for having me.

Nico: David is of course an assistant professor of law at Belmont University and a legal fellow here at Fire. And we also have a first-time guest on the show, Fire’s very own general counsel, Ronnie London. Ronnie, welcome to the show.

Ronnie London: Yep, thanks for giving me a spin on this, Nico.

Nico: Ronnie is also a former First Amendment litigator at the law firm of Davis Wright Tremaine. Okay, gentlemen, I want to jump right into it. We're covering the Supreme Court on this podcast. And yesterday, the Court heard oral argument and 303 Creative V Lenise. This is kind of a piggyback case on the Masterpiece Cakeshop case that the court, at least many allege, punted on the line the last time. They addressed the issue that was in 2018. The facts of this case are similar. We have Laurie Smith, who owns a graphic design firm in Colorado and offers custom wedding websites for customers.

But because she opposes same-sex marriage for a religious reason, she does not want to create custom websites for same-sex weddings, which violates a Colorado public accommodation law that prohibits businesses from discriminating against gay people or announcing their intention to do so. So, the case is up at the Supreme Court. And the issue is whether applying a public accommodation law to compel an artist or speaker to speak or stay silent violates the Free Speech Clause of the First Amendment. David, you said you read the transcript from the oral argument yesterday. What do you think?

David: Well, I thought both lawyers had a tough time. As typical Supreme Court arguments, it was a vigorous line of questioning. Kristin Wagoner argued the case for Maurice Smith, the petitioner. Yep, she faced some very vigorous questioning, particularly from Justice Sonia Sotomayor, essentially about, well, if she doesn't want to design a website for persons in a same-sex marriage, what about persons in an interracial marriage? Justice Jackson and Justice Kagan were also quite vigorous in their questioning.

And I think part of what the court has to do from looking at the briefing, is the court going to going to view this surely as the compulsion of speech? In a long line of compelled speech cases, is it similar to forcing the Maynards to display live free or die under the license plate? Is it similar to the Hurley case where the gay and lesbian group sought inclusion in a private parade? Or is it purely commercial conduct? And so you have the United States government and others arguing that this case really involves commercial conduct more so than speech.

And so one reason why I think you're entirely accurate, that this case will, I think force the court to address some of the underlying speech issues that they did punt on in Masterpiece Cakeshop. Does this involve speech or is it conduct? Is it really the regulation of commercial conduct or is it pure speech compulsion? And the speech conduct dichotomy is one that permeates a lot of First Amendment law.

I go back to Cohen v. California even, they celebrated after the draft case back in 1971 where the majority in opinion by Justice John Marshall Harlan II famously said, “Of course, this is pure speech, right? You're trying to cleanse the vocabulary of the F word.” What did Justice Blackmun say in his dissenting opinion that Cohen's immature anak was mainly conduct and little speech. When the court addressed Virginia B black, the burning of a cross, what did Justice Thomas write in his dissent? He said the act of burning the cross was conduct, not speech.

So, I think that sort of speech versus conduct dichotomy is something that'll be very interesting to see how the court treats that.

Nico: Yeah, but they weren't selling crosses, right, Ronnie? I mean, so –

Ronnie: Well, it's interesting to me that you mentioned the dissent in the cross-burning case, right? It was Justice Thomas's dissent in the cross-burning case where he said, “No, that's just conduct.” Yeah, that's the dissent. And this is something that's frustrated me a bit about the discourse on Masterpiece Cakes, and on this case as well. The parties below really didn't dispute whether Smith's preparation and creation of bespoke websites for weddings was speech. I don't think there's any question about that.

And frankly, I found that a little bit frustrating in Masterpiece Cakes as well. There was a lot of debate leading up to the argument and even at the argument, in that case, are cakes speech or are they not speech? Anyone who has a mixed interest in baking shows and legal doctrine should check out the cake makers amicus brief in that case, because it's one of the most beautiful briefs you'll ever see with all the illustrations in it.

But what was interesting in that case is there was a finding at the Colorado commission, that the cake was expressive. And I know that you get de novo review, in First Amendment cases, you get an independent review of the record. But at the end of the day, there was a finding, nobody bothered to say, “Hey, I'm looking at this case in a de novo way, I'm looking at a taking independent view the record, and here's why I think the cake isn't expressive.”

Nobody did that. They just simply continued to debate the point. And I found that a little bit frustrating, because I think that was one of the reasons, and this is just my speculation, of course, that the court punted on the speech issue because it was kind of a difficult speech issue if you don't accept the finding in the record. Here, in this case, the question of whether this is commercial conduct or whether this is compelled speech, I think that's a question. I don't think there's any underlying question, though, of whether Smith is engaged in speech when she creates these bespoke websites.

And so, the analogy that I've seen is, they say, “Okay, well, there's a difference between holding yourself out to the public in a commercial venture versus engaging in speech. And when you do the former, that is justification for in some cases, compelling you to provide services in a non-discriminatory way.” And the analogy I've seen in some places is there's a difference between Annie Leibovitz as a photographer who decides what she wants to shoot, who she wants to work for, what the shoots are going to be, and the Sears Photo Studio.

Now, I would say, that's not the true spectrum. I would say the spectrum is maybe Annie Leibovitz and a photo booth at your local roller rink, right? Because we can say for sure, the roller rink photo booth is not creating speech. I don't want to besmirch the artistry of some of those who may work at the Sears Photo Studio. But I take the point, right, everyone's coming in, everyone's getting the blue backdrop, the camera’s set up the same for everyone, get your family in front of the camera, we’ll take the pictures, how many wallet sizes do you want? That's different from a professional photographer who might take assignments on a private basis.

So, the argument is, 303 Creative has open to the public, they provide the services, yeah, the services might involve some speech, but because they're open to the public, they can't turn away people on the basis of who they are. But that's not really a fair reading of the record, either because Smith isn't turning away people based on who they are. Any gay couple can come in, if they've got a youth softball league and want a website for it, she'll happily do that. If they want to come in and have a website designed for pretty much anything other than a wedding or anything other than celebrating their marriage, the studio will provide that service.

But if you want to compel me to say something about your marriage, which [inaudible] [00:08:42] is saying something about same-sex marriage, that goes against my religious beliefs, and I can't be compelled to say that. And I think –

Nico: So, the distinction you're making there, Ronnie is, you can't not provide these services to someone because they are gay. But you don't have to provide them if it's for a gay wedding, which isn't a status-based determination?

Ronnie: Right. And that's the nub of the issue in this case, right? It is, are you denying service based on who they are? Or are you denying service based on the speech you're being compelled to voice?

Nico: But you're denying them service based on what they do because who they are? Is that what makes it so complicated? And how do you draw that line?

Ronnie: Let's go back to Masterpiece Cakes, okay, because I think it helps illuminate this very issue a little bit better than –

Nico: Sure.

Ronnie: When the couple walked into the bakery, and actually, as a matter of fact, one of the mothers of one of the members of the couple walked into the cake shop, “We want this cake for this gay wedding. We want you to create one of your bespoke cakes.” And he refused to provide it. He said, “Look, anything else in the store you want, any of the standard wedding cakes, you want cookies, you want Brownies, whatever we happen to have here. But for the service that I provide of creating a wedding cake, specifically for your wedding, using my voice, and my creative talents that I won't do for a gay wedding.”

And I think similarly, with 303 Creative as I understand the record, Smith isn't turning away same-sex couples for services, generally. She's not turning away services for anything other than, “I won't do a wedding website because speaking positively on same-sex weddings is inconsistent with my religious beliefs. And I don't want to voice that idea.”

Nico: I remember Masterpiece, right? They said that the gay couple came in and requested a cake could get like a standard cake that wasn't custom-made for their wedding.

Ronnie: That's right, that’s right.

Nico: Are the facts as alleged in this 303 Creative Case similar and so far is like, does Laurie Smith make template websites that they're free to use versus the custom ones where she actually has to create the message?

Ronnie: That I don't know, although I believe the entirety of her business is, I create custom sites for you.

Nico: Custom –

Ronnie: But to your point, if a more traditional couple walked in to her studio, and said, “We're already married, one man, one woman, that's what your religion says is required. We want to hire you to create a website for my brother's wedding. He's marrying another man, and we want you to create that for us,” her answer would still be no as I understand their argument, right? It's not a matter of who you're providing the service to. It's what the service will say, and putting those words into my mouth, so to speak, that I have a religious or – and it doesn't matter, quite frankly, whether it's a religious compunction or a matter of conscience. I mean, you'll note that the court only granted [inaudible] [00:12:09] on the free speech question presented in this case?

Nico: Well, that's what I was gonna ask because they punted on Masterpiece, right, by getting to the religious, the Free Exercise question. They didn't address the Free Speech question. So, if I hear you correctly, Ronnie, you're essentially saying that's not a question in this case. So, they can't use that vehicle to punt on it. Right?

Ronnie: I would like to say that. I don't speak in absolutes. I mean, you're talking about people with lifetime appointment appointments with no judicial review above them, they can do whatever they want. Yes, as a matter of structure, and as a matter of principled approach to the case. I agree with that.

David: I think part of the difficulty was the line of questioning when they asked, well, what if you had a couple who was an interracial couple? And they have an interracial marriage? Could the designer refuse to design their website because they have some sort of religious or other objection to interracial marriages? And that was a question that there really was not I don't think a very good answer to, and part of that was because they got cut off.

But that's always the struggle, right?

Nico: David, do you think that there wasn't a good answer to that question? And I'll let you do multiple choice here. And you can have D all or some of the above. But because they got cut off, because there is an answer, but the litigant didn't want to say it because it is a difficult fact to swallow. Or C, there really isn't an answer to the question that aligns itself with either the sides in this case or the potential outcomes?

David: I think all the above, although mainly A they got cut off.

Nico: What do you think the answer is –

David: Well, part of the problem I think, is in society, right? The Loving versus Virginia back in whatever 1967 the US Supreme Court unanimously ruled that a state law prohibiting interracial marriages flagrantly violated the equal protection clause that was nine to zero. Fast forward to 2015 in Obergefell, that was a 5-4 decision. And so I think that there is –

Nico: Well, wasn’t there a discussion in the oral argument, where the Colorado Solicitor General said that there is a difference between opposition to same-sex marriage and interracial marriage? Or there is no difference I should say between opposition to same-sex marriage and interracial marriage. And the Obergefell opinion itself held that people can oppose the former for honorable non-bigoted reasons.

David: Yeah, I mean look like there is no dissent loving. There were several [inaudible] [00:15:00] Obergefell. But it is a challenging question, I think, and one that I agree with Ronnie, she got cut off before she could really answer it. And then when she tried to answer it, she got cut off again multiple times. And finally, they moved on, moved on to something else,

Nico: Hey, David, really quick. Hold on. Ronnie, David really quick, I think you're clinging some change there that I picked up on the audio.

Ronnie: Oh, sorry.

Nico: So, if you could sit on your hands [inaudible] [00:15:27]

David: That's an interesting point you pick up on Nico about, you can oppose same-sex weddings for honorable reasons but not interracial marriages.

Nico: That's what the court said. That's what Kennedy said in her verdict but that’s not what I’m saying.

David: Right. And it's a good point for you to pick up on. I have said, in some ways, whether it's this case, or whether it was Bremerton last term, or whether it was Shurtleff Last term, in some ways, it's almost unfortunate that these cases have this religious overlay running through them because when you get to the Free Speech side of it, it should present I think, cleaner issues. And I didn't get to read the transcript or listen to the argument. I did, running from appointment to appointment yesterday get to pop my virtual head in for about 20 minutes.

And what I heard of the questioning and it was to the ADF lawyer, there is a part of this case where the ramifications of some of these positions do become troubling, much in the same way that if you say, “Okay, we're going to protect hate speech. And if it doesn't rise to the level of truth, and it doesn't rise to the level of incitement, there's some really awful stuff that means is going to be allowed.”

And here, I think that if you play each of these positions all the way out, it does get you to edge cases that are troubling. For example, I mean, I wouldn't expect that people would support or at least the majority of people would support saying, “I can find myself the best little bakery in Crown Heights in an orthodox neighborhood and go in and say, hey, I want this cake made. I want the side decorations to be swastikas.” And that the baker should have to do that because he's open to the public. Right?

I mean, if the Baker's opposed to that for whether it's moral reasons, religious reasons, conscious reasons, we don't compel that speech. Much in the same way –

Nico: But that's not apples to apples, right, Ronnie? I mean, you're not asking for the swastikas because of your protected characteristic. Right?

Ronnie: Well, now hold on a second, see and that's why I say it's unfortunate that there are these religious overlays in the case because, for example, if the establishment clause means anything, one of the things that it has to mean, and I think the jurisprudence supports this is we don't have a litmus test for what's the legitimate religion. If you truly believe and you act and comport with what you believe the government doesn't get to say, “This is an okay religion, this is not okay religion.” It wasn't the case that the government was saying, “Yeah, it's legitimate to do small animal sacrifice in your backyard. It's not legitimate to have a religion that requires you to use peyote,” right? There was none of that normative judgment.

And if I say my religious beliefs are the Teutonic Aryan blue, blue-haired, blue-eyed, blond-haired, race, master race, and I built a religion around it, and I want serve as based on that, under the Establishment Clause, you can't say, “Well, that's not a legitimate religion, therefore, it's not a characteristic that we protect as a protected category.” So, I mean, yes, I could probably, if I sat here long enough, come up with a better hypothetical that doesn't raise it. But I think you take the point is that you would be foisting on people stuff that would be really offensive to them.

But I think you would be able to find a vast majority of people who would think, “Gosh, that's really not welcomed.” Much in the same way it says, “Well, what if your religious beliefs were that you didn't believe in interracial marriage? Could you refuse service for that wedding website?” Again, if you accept that we're not going to put a litmus test on religious belief, then yes, I think that you have to be principled about the application of the standards here. And it's an awful outcome. But there isn't a very comfortable way to distinguish it, which is why I was wondering, David, what you thought the answer to that question could or should have been if it had not been cut off?

David: Yeah, it's a difficult question for me to answer being in an interracial marriage. Frankly, that's the part of the intersection of public accommodation law and free speech is troubling. Part of me is like if you open your services up to the general public, you want to serve people and not deny them based on who they are. On the other hand, I do see the pure speech compulsion argument here, it is compelled speech. So, I struggle with it, frankly.

Nico: Yeah. And that's the hardest thing when you're talking about free speech is I mean, none of my examples here necessarily, like my personal beliefs one way or the other. It's very hard to put that aside. And that's why I think that that question becomes a very difficult question because either you have to come up with a standard that may not hold up very well, or you have to accept the horrible outcome. But nevertheless, it's the principle of the outcome, it's tough. That's one of the reasons this case is still so tough.

Nico: Well, that's one of the key reasons that free speech work is still so tough, right? I mean, so okay, 303 Creative gentlemen, where do you think it's gonna come down, 6-3 as everyone's anticipating? Masterpiece Cakeshop was 7-2 right? Written by Kennedy.

Ronnie: On religious grounds. But from what I've heard, again, I haven't gotten to listen to the whole thing, just based on prior decisions and the commentary I've seen thus far today that sounds more or less right to me.

David: Yeah, they’re certainly going to be divided. There's no chance and bleak for a unanimous opinion.

Nico: I want to turn next to Shurtleff V City of Boston, which was a case that was decided on May 2nd, of this year, so, last term. Ronnie pulled me aside this morning and said we should maybe pivot from 303 Creative into the government speech doctrine cases. You're gonna have to explain to me –

Ronnie: [Inaudible] [00:21:43] religious through line on these cases.

Nico: Okay, okay, ‘cause I was like, “Ronnie, you're gonna have to explain to me what the connection is on the government speech doctrine side between those cases.” But yes, there is a religious through line. So, let's start with Shurtleff V City of Boston then moved to Kennedy V Bremerton, which was decided later in the last term.

The city of Boston, as you guys know, rejected an application to fly a Christian flag on one of three flag poles in front of City Hall in Boston. The City program had allowed other flags from private groups to fly on those flag poles. And the court held here that they could not, the city of Boston, could not deny the Christian group the right to fly the flag as well. And Aaron, our editor, I hope you will for our video viewers put up a picture of the flag. It's a white flag with a red cross where the stars would normally go on and an American Stars and Stripes.

The group they wanted to put it was called camps constitution. It was an [inaudible] [00:22:45] decision written by Breyer. So, whereas the last case we're thinking is definitely gonna be a split decision, why was the court so unanimous in Shurtleff V City of Boston? And why is this important case for the First Amendment? David, let's start with you on that one.

David: Well, I think it's very important because the court in my mind has recognized as Justice Alito warned in Matal V Tam back in 2017, that the government speech doctrine is a doctrine that is susceptible to dangerous misuse. It can be used as a camouflage for flagrant viewpoint discrimination. In here, you had a case where in Shurtleff there were hundreds of private groups that were allowed to fly their flags. But when Harold Shurtleff wanted to fly camp constitution’s flag that had a lot of religious content was denied. And so you had a case where the city of Boston I think, committed viewpoint discrimination based on the religious content and religious viewpoint of their speech. So –

Nico: David, we've talked about the margin case in the last one, interracial marriage, for example, someone refusing service because they oppose interracial marriage. Let's go to margin hearing. Does the outcome of this case mean that the American Nazi Party must be allowed to fly their swastika flag in front of the city hall at Boston?

David: Well, the court was very cautious. Breyer was very cautious to explain that a city could easily set up a system where flying flagpoles, they do not create a designated public forum, right? It was just by policy and practice here the city of Boston had opened this up repeatedly to different groups. And so –

Nico: And if you open it up, you cannot discriminate based on viewpoint according to the holding in this decision?

David: That's part of it, certainly, but I think the great part of it for First Amendment advocates is the cutback on the application of the government speech doctrine. We look at recent government speech cases and the Court unanimously held the Pleasant Grove V Summum back in 2009, that monuments in a public park were government speech. That may make sense because you're dealing with limited space there and a monument in a public park may be government speech. But then we somehow get to 2015 and Walker V Sons of Confederate Veterans were somehow five members of the court found that specially licensed plate was government speech, even though it was Justice Alito who wrote Pleasant Grove V Summum, he wrote their primary dissent and Walker, he said, “Look, if you see a car driving down the road with a specialty plate, you associate that more with the owner of the vehicle as opposed to the government.”

And then he also wrote Matal V. Tam, and the government speech doctrine has even been used by a couple of courts, including the Indiana Supreme Court and Vawter in 2015, and a recent federal district court in Hawaii to somehow find that vanity plates are a form of government speech. I admit that I'm a little biased here because I have a vanity plate case here in Tennessee. We had a three judge chancery court somehow find that vanity plates are a form of government speech, which is ridiculous because a vanity plate, what's another name for a vanity plate, it's a personalized plate.

So, the real thing we need to worry about is a very broad application of the government speech doctrine because if something is deemed to be government speech, it ends the First Amendment analysis. And that's very troubling. And the government can use that as an end run around the most fundamental of all free speech principles, which is the government should not be discriminating against private speakers. And to your question about yeah, there's gonna be some hateful expression out there. But hate speech is protected unless it falls into recognized categorical exceptions like the true threat doctrine, fighting words or incitement [inaudible] [00:26:48] in a lawless action.

But that leads to mind what Chief Justice Roberts wrote in Snyder V. Phelps, right? Speech is powerful, it may move us to both tears of joy and sorrow. But we do not react to that pain by punishing the speaker. We allow a lot of harmful speech on public issues because that's what we've chosen as a nation, right, to allow freedom of speech on public issues. And that's important for us as First Amendment advocates to recognize that the First Amendment does protect a lot of unsavory expression.

Nico: Ronnie, do you have any additional thoughts on this one?

Ronnie: Yeah, no, I mean, I agree with all that. I mean, I find myself in Leo's camp on this one.

Nico: Did he write a concurring opinion?

Ronnie: Well, he wrote a concurring opinion in Shurtleff. He wrote, as David mentioned, the dissent in Walker. And probably the concurring opinion in Shurtleff is the most cogent discussion of the government speech doctrine, as I've seen, because it boils down to for, Justice Alito, who, as you note wrote the majority opinion and Summum, which was our first big government speech case, right? And then he comes back to Walker and says, “No, no, you guys are getting this all wrong.” And then Mattel, he's like, “You really don't go there.” And so now he comes along with this concurrence and says, “Look, those three factors that we made use of in the prior cases, that wasn't supposed to be a test. Those were three things that we considered in the totality of circumstances that were convenient in those cases.”

But at the end of the day, though, they all really boiled down to is, is it the government speaking? Is it a person imbued with the authority of government to be issuing a message? Is it the government's message? If it is, then it's the government speech. Which is why, by the way, the license plate case, cases, like you say, David, whether it's the personalized plates, or the specialized plates, right, those are more associated with the driver of the car. The government wasn't saying anything. We don't think that the government of Texas necessarily endorses every single specialized plate message that it allows to be issued.

And the other factor for Alito is, and in the exercise of the government official speaking or the government’s representative, speaking the government's message, are they doing so in a way that doesn't suppress anyone else's speech? Because then you've slid into not government speech, but government regulation. And I think that and I hope that that will be the test that the courts come to think of and use when they're trying to decide something is government speech. And this is another case where I say, it's a little bit unfortunate that there was a religious overlay because it really doesn't have anything to do with religion. Right?

I could have gone up to Boston and said, “I want to fly my kisser army flag up today. I'm gonna have some of my people over and face paint. And I want to take a picture of the kids.” And if the Boston would have said, “Those guys are hooligans, everyone else we've flown has been pure and had the best of intentions and that's just a rock band who does awful things. We're not gonna allow that,” it's very easy to see that as viewpoint discrimination, which is why by the way once you get over the government speech hurdle, in this case, you get to a [inaudible] [00:30:08] because it's very obviously viewpoint discrimination.

And, I think that it becomes clear when you remove the religious element out of it. And it's unfortunate that the Boston City Hall personnel said, “Oh, I've got this view of the Establishment Clause. That means I have to do something different here.” And I think the court was clear in Shurtleff saying, that's not what it's about. Being pro-religious as a viewpoint. It doesn't matter that it's pro-religion versus pro-solar power or anything else. If you're gonna say, “No, that's the one viewpoint we're not going to allow and this is a forum that's just not going to fly.”

Nico: Well, let's, let's move –

David: [Inaudible]

Nico: David did you have one more?

David: The reason why this is so important is if you're an attorney for the government, I mean, you try to argue government speech whenever you can, right, because you fend off very difficult First Amendment arguments if it's government speech. That's why these cases are so important. I'm [inaudible] writing a law review article for Fire Now on the government speech doctrine and Justice’s Alito is different opinions, because it's so important. I've seen cases where the government speech doctrine, I think, is misapplied. And when the government speech doctrine is misapplied, that the harm to the First Amendment is egregious.

Ronnie: Because as Alito said, it has slid into censorship, right? It's no longer the government's message. It's government power. And much in the same way, David, and you see this with government attorneys also, I am very troubled and I'm getting a little bit off topic here, but I'm very troubled with the speech incidents of criminal conduct exception to the First Amendment, because governments always argues that. They always argue, “Oh, all we're regulating is communication about something illegal, and therefore it's speech incident.” And more often than not, they're actually regulating the speech. And I'm like, “Look, if you can get to aiding and abetting, and you can get to conspiracy, well, by all means, go forward and charge that. But don't regulate the speech or punish the speech if you don't clear those high hurdles, simply because it's allegedly speech incident.” That's another favorite government argument.

David: Yeah. [Inaudible – crosstalk] [00:32:13]

Ronnie: Views it the same way.

David: I think post [inaudible] ought to be another podcast because I totally agree with you that that is a sort of unprotected category that hasn't been fleshed out and narrowed significantly enough like some of the others. And that'd make another great podcast, frankly.

Nico: Well, maybe we do that one down the line. For this one, I want to stick to the cases at the Supreme Court in 2022 here, and I want to pivot now to a case where perhaps the religious overtones do matter for how the case got decided, talking here about Kennedy V. Bremerton School District. For those of you who aren't familiar of this case, it involved a coach, Coach Kennedy at a Washington State High School, who would periodically pray at the 50-yard line after football games. In 2015, he had been a part-time coach at the school for seven years. And he would sometimes be joined with students, by students to pray at the 50-yard line.

But when the school district learned about Kennedy's prayers, it expressed his approval and Kennedy briefly stopped praying. But he picked it back up again. Later, he notified the school before he was going to do so. And the school alleged that as a result of his prayers, and the facts, in this case, are somewhat in dispute, but the school alleged that it was a chaotic scene, spectators, reporters getting knocked over as members of the band, and players tried to join him at midfield.

The court in that case held, and I'm looking for my notes here, it was in a 6-3 decision by Gorsuch that the free exercise and free speech clauses of the First Amendment protect an individual in this case, Coach Kennedy, engaging in personal religious observance from government reprisal. The government cannot punish them for doing so. The Constitution neither mandates nor permits the government to suppress such religious expression.

Now, of course, the school argued that this was sort of an establishment of the religion which violates one of the five freedoms and the First Amendment six if you see free exercise and establishment as two separate rights protected under the Constitution. But I want to get your guyses take on the outcome of this case. Coach praying at the 50-yard line joined by players to pray at a public school. Did the court get it right here?

Ronnie: I actually want to take an issue with a small point that ultimately winds up being an important point in your recitation of the facts.

Nico: Please do.

Ronnie: This is another case where acceptance of the record and the findings below, and in this case, it becomes the whole ballgame is a bit of an issue. The parties agreed below that Kennedy was punished for only the last three instances when he prayed at the 50-yard line, which he did during the break between the end of the game and when his coaching duties resumed.” So, that is in a break from being on duty as a high school coach, a public employee.

And this becomes the centerpiece of the majority decision, right? Where you say, “Okay, this isn't about the coercion of the kid who might have surrounded him on previous prayers. This isn't about the disruption that might have occurred in other instances. This is about the 30 seconds of prayer at the 50-yard line on his own time, while everybody else on staff also and everybody else at the school for that matter who's in attendance was free to mill about and do whatever they wanted to do.”

If you accept that premise, and it is in the record, and again, I've recognized that in First Amendment cases, you do an independent review. But if you accept that premise, as the majority decision does, this becomes a fairly straightforward case of viewpoint, discrimination against religion, much like in Shurtleff for much the same reason where you have government officials believing that, “Oh, I have an establishment clause problem here. I have to stop this if it had been anything but religion I wouldn't have done it because I would have been viewpoint discrimination.”

And the problem with the way this court, the court broke on this, because you'll see the dissent by Sotomayor takes a very, very different view of what these facts actually are.

Nico: Yeah. And can I just quote that really quick?

Ronnie: Yes, please.

Nico: Quickly, the dissent Stephen Breyer, Elena Kagan and Sotomayor complained that Gorsuch had, “misconstrued” the facts of the case, depicting Kennedy's prayers as, “private and quiet,” when the players had actually caused, “in their estimation,” severe disruption to school events. So, very different construing of the facts.

Ronnie: Right. And so as a result, you have these very, very divergent decisions because the justices on each side didn't agree to what the factual setting was, which is generally not something you should be getting at the Supreme Court. Right? It's –

Nico: Yeah, I was gonna ask is that common?

Ronnie: It's not a fact-finding court, it’s not even a court of correction, right? It's a court of deciding legal issues of far-reaching implication. And by the way, as a result of this, you get a decision where Gorsuch writes that religious speech is doubly protected, which I find very troubling. I think that you also can't have it both ways, right? If in Shurtleff for example, it's just a matter of you can't take an anti-religion viewpoint as the government, you don't get double protection for religious speech it's just a another viewpoint that gets the same protection and the same entitlement to not being discriminated against.

And I think if you look at this case, on the three specific instances, and you're able to see that this is basically viewpoint discrimination, because if he had gone to the 50-yard line and done anything else other than pray on those few minutes of his own time in the interregnum between the end of the game and the resumption of his duties, the viewpoint discrimination, much in the same way with Shurtleff would have been very clear. I don't know if you have any thoughts on this, David?

David: Yeah, I do. And I actually, ultimately agree with the majority opinion, primarily because of its take on Garcetti. So, in the lower court, the Ninth Circuit had held that Joseph Kennedy had no free speech rights because he spoke as an employee under Garcetti versus Ceballos. The court’s 2006 decision that is meant to the government speech doctrine where Justice Kennedy said, “When government employees speak pursuant to their official job duties, the Constitution doesn't insulate them from discipline.” Horrific decision that is eviscerated the free speech rights of public employees across the country.

Ronnie: That sometimes –

David: Justice Gorsuch – What I'm sorry?

Ronnie: I was gonna say sometimes gets incorrectly applied to college professors.

David: Exactly. And that's one of the another one of the great beauties of fire is to fight back against Garcetti in the academic context, what we're up to four circuits that don't apply Garcetti there. Hopefully, it'll be all one day. But this was a case of more of private religious expression than government speech. And for that reason, I do support primarily what Justice Gorsuch said with regard to the Ninth Circuit's over-extension of Garcetti. That was a win, I think for First Amendment advocates.

The other part though is that he overruled the Lemon test. And he said that Lemon V. Kurtzman was the works 1971 decision that was the primary test used for many years by the Supreme Court to determine whether something violated the Establishment Clause, right, they have a religious purpose instead of a secular purpose, they have a primary effect that doesn't advance on every religion is no excessive entanglement.

And, Lemon had been mightily criticized through the years. Scalia back in 1994 called it a nightmarish ghoul, it still stalks our establishment clause jurisprudence. But what do we do in place of Lemon? So, Gorsuch overruled Lemon and he also overruled O'Connor's clarification that she termed it a clarification or a clarification of the Lemon test, the endorsement analysis that she created back in 1984, and a concurring opinion and Lynch V. Donnelly.

So, what is the court going to do now in future Establishment Clause cases? That's going to be quite interesting. And Ronnie, I think hit the nail on the head on the biggest, the biggest question mark, is this double protection for religious speech under the Free Exercise Clause in the free speech clause? I don't know if this is a modern iteration of Justice Scalia’s hybrid rights and Employment Division v. Smith, or it's some new creation. I don't know what it is.

But I fear with the double protection under the Free Exercise Clause and free speech and if you overrule Lemon, I mean, is there going to be a lot of religious indoctrination going on in the country? I don't know. I mean, I just think it's really an open season in the religious liberty clauses. But I go back to our government speech thing.

I do like the fact that Justice Gorsuch basically shot down the Ninth Circuit's over-extension of Garcetti.

Ronnie: And at Fire, of course, we appreciate the nod towards the academic freedom or potential academic freedom exception in Garcetti. That was an important point. But I joined you on this W-protected thing. I mean, I've always been telescoping out a little bit. I've always been uncomfortable with this whole, core protected speech or the most protected speech that we have, then you put political speech up here, and you put new dancing all the way down here, and everything else falls between. And now what do you do religious speech if it's doubly protected does it jump up over political speech? I've never really liked that at all.

I view it as binary. Is it protected or not? Otherwise, you're just playing normative games, right. And so I mean, like, for example, in Virginia Board Pharmacy, as the Court said, there are a lot of people out there who care a heck of a lot more whether they can get their life-saving drugs, or life-preserving drugs at a good price than they do the most heated political debate of the day. And so to have this hierarchy of speech has always troubled me. And now having some speech be doubly protected or more equal than others, so to speak, has always been troubling to me.

Nico: So, I want to move now, recognizing that we've probably got 15, 20 minutes left here. I want to move to the case, this term, Gonzalez v. Google, which approaches section 230. Section 230, of course, is a protection for online platforms that arises out of the 1996 Communications Decency Act, which protects those platforms from liability for content posted by users on their platforms. But in Gonzales V Google, the question is it was a case filed by the family of an American woman killed in a Paris bistro in an ISIS attack in 2015.

They brought a lawsuit under the anti-Terrorism Act arguing that Google which owns YouTube, aided ISIS recruitment through YouTube videos. Specifically, they recommended probably through an algorithm video to users that were ISIS videos, and that that sort of recommendation animated ISIS activity and perhaps resulted in the death of this woman. So, a divided panel of the Court of Appeals for the Ninth Circuit ruled that section 230 protects such recommendations, at least if the provider's algorithm treats contents on its website similarly. The algorithm recommends similar content similarly.

The court did wonder, though, and you're starting to see these sorts of concerns percolate in the political space, as well, whether social media companies should continue to enjoy this sort of immunity for the third-party content they publish. And that the Court said, “This is a pressing question that Congress should address.” Ronnie, I think you've worked on section 230 issues in the past. So, what is your take?

Ronnie: Yeah, so there are really two questions there, Nico. I mean, first question is, is 230 really as broad as the courts have interpreted it as being, even given the evolution of social media and some of the things that were not even conceivable at the time section 230 was adopted? The answer to that question may be no. I think it is. I think it wasn't meant to be that broad, but it would be a reasonable mind that could different answer that question no. The second question is, if it is that broad, should Congress do something about it? And what should they do?

So, those are two questions. And you see that in not only the end of the majority decision in the ninth circuit here, but especially in the dissenting decision here, and the chief judge of the second circuit's the dissenting decision in Force versus Facebook. But for me, at the end of the day, 230, and then I took it as said this, it boils down to is, are you holding the online service provider, the interactive computer service, liable for the content of a third party?

And, they get into a lot of detail in this case about what does the algorithm do? Is it a force multiplier? Does making recommendations for similar content mean that you're really suing the ICS for its own speech, in the form of its recommendations, and algorithmically trying to figure out what might be similar? So, you're saying, “Well, no, I'm not really suing, because of that one ISIS video. I'm suing because, there's a whole bunch of other videos that may or may not be ISIS, but they're all similar, and you're pushing them towards these people.

And that's you doing that if it's not a third party.” But I think at the end of the day, no matter which of those views you take, if they weren't terroristic videos, you wouldn't have liability. And there's nothing terroristic in what the algorithm does. It's all about the content that third parties post to the service and make available.

And this case is troubling to me because there are these sentiments and you've seen Justice Thomas's dissents from the denials of cert talking about how section 230 should not be this broadly construed. I think, at one point, even justice Gorsuch at one point had a similar statement. And I'm concerned because I don't know where you draw the line. I think everybody agrees that if all you're doing is providing a search engine to make people able to find stuff that they might be interested in on the internet, if that content put up by third parties is problematic you've got 230 immunity.

Then the question is, okay, well, what about when you return the search the search results, if you're prioritizing certain results over others, and that content that you've prioritized is problematic, do you get to 30 immunity? I think the answer is yes. The case law has developed that way. And then the question becomes, okay, well, now what if you're, finding and ranking become much more sophisticated, and you're able to present recommendations? And I think, in my opinion, those are all of a piece, right? At the end of the day, your problem is with the videos that ISIS or ISIS supporters have put up not anything that the interactive computer services.

And the reason I'm very interested in this case is because if you find what Google did here, with respect to its recommendations, and the operation of its algorithm, falling outside section 230, I don't know where you draw that line, working back towards rankings, working back towards search engines, working back towards just the editorial choices of what you present on your website in which order, and in which things you keep off. There's another issue in this case at the Ninth Circuit, which I don't think is before the Supreme Court in this case, and that is the ninth circuit, even the majority while it was holding that the recommendations and the presentation of the terroristic content fell within 230, the monetization part did not fall within 230 protection necessarily, because that wasn't liability based on the third-party content that terrorists posted. That was liability based on Google making payments, sharing advertising revenue with the terrorists and that way enabling them or facilitating their conduct –

Nico: Is that alleged that they actually gave money to these terrorists as a result –

Ronnie: Yes, and because it set the motion to dismiss stage, that is taken as true. Now what the court ultimately decides what that is, the majority that is, decides that 230 doesn't apply. Now we have to look at the anti-Terrorism Act and Justa and see if there's mayve abetting in other liability and ultimately finds that it doesn't.

Nico: And that's the question right?

Ronnie: [Inaudible] [00:49:48] distinction. The distinction between Google is doing something itself, not simply presenting third-party content, or as the recommendations are simply presenting the content that is the source of the liability.

Nico: Yeah. And that's what the anti-terrorism question gets to, right? There's another case before the court Twitter V. Tammany, which doesn't get to the section 230 question, but asked whether essentially Twitter, “knowingly and substantially assisted ISIS and a similar killing.” And so in the lower courts there, I believe was the Ninth Circuit said that it did not. So, is that the distinction? You have this algorithm that privileges content based on past user behavior, versus Twitter actually going out there and seeing this ISIS content and saying, “Oh, we want to support them. We want to put more of these videos out because we agree with the viewpoint.”

David: I didn't spend quite as much time on the Twitter side, because the court didn't really engage on the 230. question with respect to Twitter. I mean, if ultimately, Twitter is doing the same thing that YouTube is doing, and that is simply saying, “Here's all this third-party content, here's how you find it. Here's how we're going to give you a shortcut to get to it based on what we think your interests are,” I mean, to me, all of that is section 230, 230 protected because that is serving as a publisher. And if you're going to impose liability, you're imposing liability as the publisher of others' content.

Nico: Yeah, I just wonder like, so, obviously, these platforms have content filter moderation tools. But sometimes they're delayed, right, as we saw with the buffalo shooting, where it was live-streamed by Facebook before it took down, it took it down a minute later. How do you do that? How do you provide live streaming service without the risk that that sort of thing is going to happen? But there are billions and billions and billions of pieces of content on the internet. Our technology advances every day. But is it ever going to be so advanced where it could prevent an ISIS beheading video from making it in real quick?

I just wonder, okay, so you get rid of 230 liability for this stuff, I don't see how the platforms then can even do their jobs, can service any content. I mean, does it all need to go through and be monitored by a human, every piece of it just doesn't. And that's obviously and I'm asking rhetorically here because you guys know, that was obviously the motivating factor behind the creation of section 230 in the first place. But I don't understand even if, and all these First Amendment cases, we've talked about it throughout this, we talked about it in 303 creative, like, there are always going to be edge cases, there are always going to be problems created by allowing for free expression in a free society.

Ronnie: But I think I mean, there's a very easy answer here, right? I mean, because you can ask the same question. How do you keep a boob off of the Super Bowl? Right? Well, a week later at the Grammys, you come up with this Rube Goldberg esque minute-long delay that allows video editing so that between the actual live conduct and the broadcast of it, someone can get in between and blur something. And now, of course, in the wake of all of that they have much more –

David: So, the key there is it's a someone, it's like you can't have human moderation on billions of pieces online content.

Ronnie: Right. So, my point was going to be, yeah, you could have a rule that says, all online publishers must have a delay that allows either a person or AI or something to prevent certain kinds of content, it would be blatantly unconstitutional. And PS, I'm not even sure you could do that to broadcasters. I mean, there isn't a decency rule. But, yeah, there's a way to do it. The question is, is it desirable? Is it constitutional? I think the answer to those questions is no.

Nico: Well, I want to turn next, David, I didn't let you in on that. But please forgive me on that. I want to wrap up here on the trademark cases because there are two trademark cases that raise varying degrees of First Amendment questions, but are nonetheless interesting. There's a case Andy Warhol Foundation for the visual arts V. Goldsmith, and then there was another case Jack Daniels properties V VIP products two, slightly different cases. Let's start with the Andy Warhol case.

In 1984, after Prince became a superstar, Vanity Fair wanted to publish a piece about Prince in which they commissioned Andy Warhol to create an image of Prince for an article called Purple fame. And I'm just trying to go through the facts here quickly. They paid for this woman, Lynn Goldsmith, who's a photographer for the rights to use that image and then for Andy Warhol to recreate it. They published it on their website, but in subsequent years, Andy Warhol, then made more images based on that original photo that Lynn Goldsmith took that were not licensed by Vanity Fair and were used in other commercial enterprises.

And so of course, there are suits and counter suits over what the license involves there. The crux of the question for me, documentary filmmaker, right, what constitutes fair use of an image?

And I think that just let me pull up the issue before the court, the question before the court, whether a work of art is transformative when it conveys a different meaning or message from its source material, or whether a court is forbidden from considering the meaning of the accused work, where it recognizably derives from its source material. Now, I'll let Aaron our editor if you're hearing this put up an image of the original photo, versus the one that Warhol later created separate from the Vanity Fair Commission.

They look pretty similar to me, but I'm not an artist, right? Maybe. So, maybe there is a message here that I'm missing. I mean, one has color one doesn't I believe? One has like, more squiggly I don't know. But like, how are we supposed to think about it? And this is constantly a question again, as a documentarian, how do we think about fair use? What is transformative? What is too similar to the original product? David, do you have thoughts there?

David: Well, Nico, that's why this case is so important, right? And this is a copyright case, so there was an underlying tension between the First Amendment and copyright law. And in the way that our legal system has tried to provide and make sure the copyright is truly a “engine” of free expression is through two doctrines, the fair use doctrine and the idea-expression dichotomy. And if you look at the fair use doctrine, which was I think, statutrized in the Copyright Act of 1976, there are four factors, we're looking primarily at this first factor the purpose and use.

And there is this concept and you hit the nail on the head in your recitation whether something is transformative. If something is transformative, then it adds a whole new layer, it adds a whole new layer of expression. This is really a modern iteration of Campbell versus Roy Acuff back in. when was it 1994? Right, when the two live crew did a parody of Roy Orbison’s pretty woman. And Andy Warhol is very famous for these silkscreen portraits. And the second circuit, I thought had a bit of a crabbed application of that first Fair Use factor. I think that it's very important that we have a broad understanding of what is transformative so that we don't have a system that stifles freedom of expression.

Nico: Well, yeah. But this is the issue it’s like, okay, when does it cross the line into transformative? Particularly in modern art, right, like, you could put a toilet in the middle of a room, not doing anything else to the toilet, but putting it in the middle of that room. And the art is imbued with different meaning as a result of kind of how the artists describes it. So. Andy Warhol, especially in his own time was considered a modern artist, right? The Campbell Soup thing, I mean, he's not doing much to this Campbell Soup can except drawing it.

Ronnie: Nico, they say bad facts make bad law. And I think this is an example of tough facts make tough law. And I think, particularly what's tough about this case is that it involves the static visual arts. To go back to your toilet question, if you will.

Nico: It could be a banana in the middle room. Yeah, [inaudible] [00:58:44]

Ronnie: Or a banana on the wall, whatever it is, you only get copyright protection for the copyrightable creative elements in question. So, the toilet sitting in the middle of a room, if someone takes the same toilet and puts it in their house, in the middle of the room with nothing else, have they infringe that copyright? Well, what's the copyrightable element of the toilet in the middle of the room in the museum to begin with?

Nico: Yeah, probably not the best example.

Ronnie: No, but I think it's an important point to illustrate this because when it comes to photography, and static arts like this, you've got this picture of Prince, and it's a black and white with him against a white background, and it's lighted a certain way, and she applied his makeup a certain way. And she said she was conveying certain things about it when she took it. And it was an unpublished portrait. It was licensed as an artist reference for the Conde Nast magazine. She didn't know it was going to be a Warhol. Therefore, she didn't know that it was necessarily going to wind up in 16 different iterations. And then the question is, what does Warhol do to it?

Well, Warhol softens the focus. He makes it, dual colors, but in a way that doesn't emphasize the contrast. And in some cases, it's multiple colors. Now there are some and when you find Aaron, the images there in the decision and particularly the district court decision, they show all 16 of the Prince iterations, I'm sorry, the Warhol iterations of Prince. Some of them are black and white. And they are very close to the portrait, and the others are much more stylized.

And so the question becomes, what are the copyrightable elements of a photograph? And then, what did Andy Warhol do to modify them? And did he do it in a way that is transformative as opposed to being a derivative work as a documentarian? I think it's easier with motion pictures, and things that have more complexity and more different moving parts that are copyrightable to say, “Okay, this is a very tough case because of the nature of the images involved.”

Nico: And does it become tougher because Conde Nast, Vanity Fair licensed the image, I forget the phrase you used, it sounded like a term of art, Ronnie, but it licensed the image in the first place. I remember when I was doing the documentary, where our lawyer would say essentially, if you've already reached to the copyright owner to license the piece of work, even if you think you have a strong Fair Use argument, you probably need to license it at that point. Right?

Ronnie: Yeah, I mean, yeah, I mean, that's a rule of thumb. It's also the better safe than sorry. And do you want to create a work that may be enjoined and not be redistributed later?

Nico: Of course. Yeah.

Ronnie: Yeah. I mean I think –

Nico: So, what you're saying here, yeah, so if the court decides that Andy Warhol's work was transformative enough, then Conde Nast didn't need to license it in the first place, right theoretically?

Ronnie: Arguably, yeah.

Nico: Yeah. Well, there's another trademark case going up to the court Jack Daniels properties V VIP products. Essentially VIP products made what was it a dog toy? Lampooning bottle of Jack Daniels whiskey by kind of mirroring its iconic shape and black label that replaced Jack Daniels with bad Spaniels and old number seven brand Tennessee sour mash whiskey with the old number two on your Tennessee carpet. After VIP Products asked a federal court to declare its toy did not infringe Jack Daniels trademark, Jack Daniels countersued for trademark infringement and Trademark Dilution, which is another concept here. And the Ninth Circuit before it got up to the Supreme Court sided with VIP products. The question here is whether humorous use of another's trademark as one's own on a commercial product is subject to the Langham acts traditional likelihood of confusion analysis.

I don't know I wouldn't confuse the two. But that's just me personally, and or instead receives heightened First Amendment protection from trademark infringement claims. And then there's that second question of Trademark Dilution, is a trademark diluted by creating these sort of parody products? Which one of you wants to take that first? David?

David: Well, I view it as protected parody more so than then trademark infringing. I don't think that –

Nico: Is that even a question before the court though? I mean, I'm not seeing it.

David: I don't view this as any way commercially harming Jack Daniels. If anything it’s the Jack Daniels. Look, Jack Daniels is not getting harmed. I live in Tennessee. Everybody drinks Jack Daniels, Jack and Coke is the favorite drink. Right?

Nico: Well, what are you saying? Are you saying that Jack –

David: It's just funny. It's funny. The company made. It's funny. They don't like it. It's poking fun at them. And I just I again, I think this is Campbell V Acuff again, I think that's the one similarity even though ones a copyright case and one's a trademark case, I think Campbell V. Acuff is the primary precedent and both of them. And to me this is this is just like the two Live Crew having the different lyrics that are similar to Pretty Woman of Roy Orbison. I think it's protected parody.

Nico: So, David says there that Jack Daniels or is being jackasses Ronnie, do you agree?

Ronnie: Well, Jack Daniels is sacred. I mean, no, I mean nobody started there.

Nico: But for our listeners, so they know, Ronnie is like the biggest whiskey snob in the office. Although he refuses to drink the best kind of which whiskey which is peated Scotch whiskey, but we'll leave that for another podcast. Ronnie, I'll let you continue.

Ronnie: Yeah, no. So, the issue, in this case, is when you have a trademark infringement or Trademark Dilution case, one of two tests is going to apply if there's been an infringement and it depends on whether the infringement is part of an expressive work or product or a non-expressive work or product right? And so that's why whether this squeaky toy is speech or not, in some ways this brings us right back around to where we started with 303 is, is this speech or not because whether this dog toy is speech dictates which trademark test gets applied. And to me and I'm in David's camp here, I mean, it is parody, it is funny, but for me it boils down to is forget about Jack Daniels [inaudible] [01:04:57] pretend they didn't use Jack Daniels.

Pretend it is a unique, made-up brand for purposes of this dog toy, would it be copyrightable? Is it a work of authorship? And I think the answer to that would be clearly yes. Right? You've got expressive design elements in the shape, in the text, in the color. And if it's a work of authorship, to me, that’s speech, and if it's speech, you get the trademark test attributable to speech. And then you get to the questions of is it parody? Will it dilute the Jack Daniels image? Will it confuse consumers about the source of the product? Will people think this is a Jack Daniels product as opposed to someone else's product?

And I think here as David points out, given the way that they've marked this up and made kind of a joke out of the whole thing, I don't think that there's any risk of that even though and this is in the record, Jack Daniels does license its marks for dog collars, leashes, and other dog products. I still don't think in my opinion, if I were on this jury, that it would be likely to be confused Bad spaniels number two on your carpet with Jack Daniels licensing its actual trademarks for a wide variety of products, some of which are dog related.

Nico: Well, gentleman, I think we have to leave it there. We've covered a lot from the Supreme Court in 2022. Of course, the term runs through June of 2023. I think it sometimes runs into July, as well, depending on how fast they're getting their work done. But I appreciate you both taking the time to talk through the cases. David, Ronnie, thanks for coming on the show.

David: Thanks so much for the opportunity.

Ronnie: Great pleasure to have you back.

Nico: Yeah, well, you're just a couple office over Ronnie and I know you'll hold me to it. So, this podcast is hosted and produced by me Nico Perrino, and recorded and edited by my colleague Aaron Reese. To learn more about So to Speak you can follow us on Twitter or Instagram by searching for free speech talk. You can like us on Facebook by going to facebook.com/So to Speak podcast. And we also pull or post I should say the full video versions of these episodes too, So to Speak’s YouTube channel when we post or at least moving forward we will post segments of the show to Fire’s YouTube channel which if you go to at the fire org at YouTube you can see in the channel section that the So to Speak channel is linked there.

If you have feedback for the show, email us please, Sotospeak@thefire.org. We also take reviews at Apple podcasts or Google Play reviews to help us attract new listeners to the show. And until next time and thank you all again for listening.