Sunday, May 05, 2019

gays and wedding cakes: redux

As people talk more and more about how large corporations are de-platforming people on the right simply for expressing their political views, it's time to revisit an old issue: that of whether a business has a right to deny service to members of the general public.

You may remember the 2012 case in which a bakery denied service to a gay couple who wanted a cake for their upcoming wedding. The local court in Colorado ruled in favor of the couple, but in 2018, the Supreme Court ruled in favor of the baker who had refused service because of his Christian beliefs. At the time, people on the right were saying that a business ought to have the right to refuse certain kinds of service to the general public should those services violate the religious beliefs of the people working at the business in question. I wrote, some years back, that I wasn't clear on the legal dimensions of the issue, and to be honest, I can't say I've researched it in depth. My own gut feeling then, and it remains my gut feeling today, was and is that, if you commit to offering services to the general public, then your religious beliefs have no place in business transactions. So, yeah: unless a Muslim bakery specifically says it's catering to halal-eating clientele, you do have the right to ask that bakery to make you a bacon-filled cake. Conservatives, however, cited this same hypothetical back in the day, agreeing in principle that Muslims' denial of service was their right, given the basic First Amendment right of religious freedom. But in the case of the Colorado bakery, it wasn't obvious that the bakery as a whole was a Christian business; it was run by Christians, but not specifically for Christians: it catered to the general public, not to a specific demographic. Anyway, the right's point, back then, was that it's fine to deny service to members of the general public if the service violates religious beliefs.

But it seems the right has done a 180 during the current de-platforming crisis. Paul Joseph Watson has just put out a second video about his own de-platforming, which has thrown into relief the question of whether a large and powerful corporation providing a public service, like Facebook or Twitter, has the right to dictate what thoughts and forms of speech are permissible on its platform. Watson notes that Donald Trump mentioned him and retweeted one of his tweets, and he quotes rightie nutcase Mike Cernovich, who tweeted:

I hate to say I agree with Mike Cernovich—who is a provocateur, anti-vaxxer, loony conspiracy theorist, and overall asshole—but I agree with Mike Cernovich. He's making precisely the point I was making above: if you're a business whose target market is the general public, you can't pick and choose whom you serve. Again, I need to dig into the legal realities of this issue, but I suspect that, with this particular debate having gone so public, people with more knowledge than I have will soon be citing laws left and right to support their stance. For the moment, though, it seems to me that the right has some explaining to do: its stance on what businesses can and can't do seems to have undergone a fundamental, and hypocritical, shift.


John Mac said...

Just off the top of my head, platforms like Twitter and Facebook claim to be non-discriminatory in applying their so-called community standards. If they came out and admitted they only tolerate leftist viewpoints I think they'd be okay. It's the pretending to be open to all that is dishonest.

No one expects a lefty or righty website to publish opposing views, it's understood they exist to preach to the choir. Lying about everyone being welcome and then dis-inviting those with opinions they don't like is perhaps illegal.

I'm not sure how to reconcile that with the cake shop case. I supported the bakery at the time using the reasoning of requiring a Muslim store to sell bacon. But perhaps that's a slippery slope. Can I open a bar and say it will only serve white conservatives? Is race different than religious or political viewpoints?

No easy answers here.

Kevin Kim said...


Maybe it does just come down to simple honesty. If you're a Muslim bakery, and you make clear that you're selling only to halal-eating clientele, there should be no problem with that: it's analogous to your point about left- and right-leaning websites: the agenda is front and center, so there's no false advertising.

It still seems to me, though, that the right was arguing one way years ago, and now it's flip-flopped and is arguing another way. You can't have it both ways: either you MUST serve the general public if you're committed to serving the general public, or you MUST declare your agenda (which, from what I understand, the Christian baker didn't).

The issue might also be more complex than I'm making it out to be. Styx and PJW are taking the stance that Facebook, Twitter, etc., can't hide behind the idea that "a private company can do what it wants, including enforce its own standards inconsistently." This is because these platforms have essentially exploded into public services. You've doubtless heard the ongoing discussion about whether these giants should be labeled as publishers, as platforms, or as public utilities. PJW's point, in his video, was that, if Facebook et al. go the publisher route, they become legally liable for anything put on their services. If they go the platform route, then they have no right to censor any content except things that are illegal according to the law of the land, e.g., threatening the use of violence, inciting violence, etc. What the companies are trying to do is walk a middle road in which they both have the right to censor and get away with allowing radical content (usually from the left).

In principle, I agree with you that these companies ought to be honest about what their agenda is. For the moment, though, I also think the right needs to get its house together and be consistent in the arguments it uses re: what companies can and can't do.