A few years back, I queried whether David Cole, the legal director of the organization that uses the legacy name American Civil Liberties Union, could save the ACLU from becoming the apologist for the termination of civil liberties and the enforcer of the woke brand of political correctness. Experience since suggests that he won’t be its savior.
Cole has now pounded the final nail in his coffin in what may be one of the most shamefully unprincipled arguments ever proffered to eradicate constitutional rights and subjugate people to the will of the woke.
Can an artist be compelled to create a website for an event she does not condone? That’s the question the Supreme Court has said it will take up on Monday, when it hears oral arguments in 303 Creative v. Elenis. The answer would seem to be obviously “no.”
To the old ACLU, or to any organization dedicated to preserving civil liberties, this first paragraph would have been all that needed to be said, with the caveat that the words “seem to” were wholly superfluous. But that was then, and this is now.
But that’s the wrong question. The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians? The answer to these questions would seem to be, just as obviously, “no.”
That is certainly the way the someone who despises civil rights would frame the question, for it turns people’s liberty on its head. No longer are civil rights to be preserved for the individual against the government, but they are a weapon to be used against any person who fails to comport with “correct” beliefs and conduct as dictated by the powerful to control the individual. And that is what David Cole, legal director for the organization that uses the legacy name American Civil Liberties Union, has been reduced to. A shill for the Grand Inquisitors of Correct thought and Conduct, or else.
From a civil rights perspective, the only question is whether the law enacted by Colorado compelling people to not discriminate, even if it means they are constrained to speak things they don’t believe or agree with because the government will punish them, violated the First Amendment right to Free Speech. Cole doesn’t like that question, although I’m confident he knows it’s the correct question, the only question, from his experience years ago before the ACLU sold its soul to the unduly passionate little scolds.
The A.C.L.U. has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree.
But…
To the willingly insipid, legacy organizations like the ACLU free-ride on their reputations from generations ago (Skokie was 1978) so as to be not merely the accepted voice, but the authoritative voice, for civil liberties. The media turns to the ACLU for its seal of approval about laws infringing on constitutional rights. If the ACLU says it’s good law, no matter how flagrantly destructive to rights it may be, the media dutifully reports that there is no question, no issue, since the ACLU said so. And how could anyone doubt the ACLU, the “nation’s leading defender of free speech for more than a century”?
But we filed an amicus brief supporting Colorado in 303 Creative, and we defended the same law five years ago on behalf of the gay couple denied service by Masterpiece Cakeshop. We did so because Colorado’s law does not do what 303 Creative claims it does. Public accommodations laws, which have been on the books since the 19th century, ensure that everyone has equal access to the public marketplace without regard to attributes historically marking them for second-class status. Those laws don’t trigger serious First Amendment concerns because they treat all businesses equally, whether they take corporate headshots or serve burgers and fries. The purpose of these laws is not to dictate the content of anyone’s speech, but to make sure that nobody is denied goods or services in commercial markets for discriminatory reasons.
Notice how Cole studiously avoided the issue, the only issue, raised in the case, that it compelled expressive conduct by someone who had to create something bespoke which she, because of her religious belief, did not want to express? Cole isn’t stupid, so when he works so very hard to avoid even the mention, no less the contention, of the issue in the case, he does so to deceive readers. This isn’t merely a lie of omission. It’s an affirmative lie. The case has nothing to do with refusing to sell burgers to gay people, but to force someone to create words and images on a blank page. It’s not accidental that Cole tosses in burgers and fries when he knows that he’s deceiving people.
And if you thought his argument couldn’t get any more disingenuous, meet Annie Leibovitz.
First, no artist has to open a business to the public in the first place. Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.
Any lesser personage than Leibovitz isn’t an “artist,” not that this inane argument has anything to do with the question of compelled speech. Even ordinary people, the sort the ACLU despises, have a right not to have the government demand they utter the officially approved words or be punished.
Cole offers a second argument, and it’s here if you want to read it, but it is so mind-numbingly stupid and irrelevant as to be unworthy of mention.
Nothing here suggests that discrimination against gay people is fine or acceptable. That’s not even remotely the point. The point is that laws that violate the First Amendment are unconstitutional, no matter how dearly David Cole and the ACLU love them and want to impose them by any means necessary. No, Cole will not be the conscience of the old ACLU. He makes that absolutely certain. And Cole was the last hope.