“This Month in the Law” Begins Publication

Growing up, I loved This Week in Baseball (TWIB). Every Saturday I could tune in to get a snapshot of everything happening around major league baseball. This was the era before ESPN, so there were no nightly highlight shows on cable TV. I listened to the Royals on the radio because they were not on TV more than once or twice a week. If I wanted to see the plays I heard on the radio or find out how other teams were doing, I had to watch TWIB. It was short, informative, and very entertaining. Somehow they managed to provide all the highlights, updates, standings, and bloopers in just thirty minutes.

When I started thinking about writing a column about current legal events, I thought about This Week in Baseball. I wanted to do something that was informative and entertaining. There were a few problems, though. First, I would never be able to do anything on par with TWIB. Even mentioning the name in comparison is an act of folly. Second, I could not possibly get something written on a weekly basis. I might be able to do something once a month. Maybe I could call it This Month in the Law. Or, perhaps I would be too busy, and it would become Semi-Occasionally in the Law. Not a catchy title, but probably more accurate. Third, I worried I would not have enough subject matter to fill a regular, or even a semi-occasional, column. Then I did a quick check of current events. I realized the problem was not too little to write about, but too much.

Current Events Provide the Subjects

When I started to collect ideas for a column the major story was the new NFL policy on player protests. I figured that could make for an interesting column. Before I could sink into that story, comedienne Roseanne Barr issued her infamous tweet about Valerie Jarrett. Her comment was viewed by many as racially insensitive at best, and downright racist at worst. As a result, her TV show was canceled. Within a day, comedienne Samantha Bee directed a brutal and vulgar joke at Ivanka Trump. She apologized for her comments, and her show was not canceled. And then, just a few days after that, the Supreme Court issued its opinion in favor of a Colorado baker who refused to bake a wedding cake for a gay wedding.

One thing all four of those events have in common is the First Amendment to the U.S. Constitution. The first three involve when speech can be constrained. The fourth case was seen as a combination of free speech and free exercise of religion.

FIrst Amendment Issues

Honestly, I do not think we appreciate how frequently the First Amendment impacts us, or how often legal issues revolving around the First Amendment come up. It seems The Second Amendment, firearms, gets much more air time and heated discussion, but there have not been many recent legislative enactments or judicial opinions on that subject. The First Amendment, on the other hand, is non-stop legal activity.

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Lumping the first three cases together (the NFL, Roseanne Barr, Samantha Bee), the obvious question is whether or not there are First Amendment issues involved? Actually, there is a pretty easy answer to this question. The First Amendment only restricts government restrictions on speech. (Technically, the First Amendment restricts Congress, which has generally been understood to restrict all three government branches. The Fourteenth Amendment extended the restrictions to include the separate states.) In each case, there was some conduct by an individual or group of individuals, and some response by an employer. None of the employers are government agencies. As a result, none of the conduct violates the First Amendment.

The NFL Rule

However, there may still be some legal challenges ahead, at least for the NFL. The new rule says the league will fine a team if one, or more, if its players protests during the National Anthem. The rule goes on to say the fine can be passed on to the player by the team if it so chooses. The most significant legal hurdle is the collective bargaining agreement between the owners and the players. The player’s union is arguing this new rule is not permitted under the collective bargaining agreement because the union did not ratify it. The owners have unilaterally imposed the rule through their representative, the league commissioner. Because a contract governs the workplace, the owners will have to show they have followed the contract terms. However, there is one First Amendment angle I have not heard discussion about. Namely, the teams typically play in publicly-funded stadiums. If a team attempts to levy the fine on an individual player, what is the impact if the stadium, i.e., the workplace, is taxpayer funded? I honestly have no idea, but I think this bears watching.

Roseanne Barr and Samantha Bee

As to the two comediennes, the First Amendment is not in play. Their employers are free to take action, or not, in response to their comments. Again, however, if there is an employment contract, any action must comply with those terms. Presumably, both stars have employment contracts and those contracts include some type of morality or bad conduct clause. As long as the employers follow the language of the contracts, they can pursue appropriate remedies.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Finally, there is the issue of the Colorado wedding cake baker, Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case was seen as a test between two important American principles – freedom of religion (and speech) and equal treatment under the law.
When two men asked the cake baker to make a cake for their wedding reception, he refused. His religious conviction prevented him from approving of a gay wedding. He would, however, let them purchase any stock cake he already made. He only refused to prepare a cake to order.

Persevering or Throwing In the Towel?

One of the most important lessons I learned in law school was “if you think the answer is easy, you probably don’t understand the question.” I think this maxim applies here. If the baker refused to sell the couple a stock cake, this would seem to be obvious discrimination. The Supreme Court previously ruled in 1968 a barbeque restaurant could not refuse to serve African-American customers despite the owners “deeply held religious beliefs”. So religion would not permit discrimination. If the baker did not make custom cakes for anyone, this would be an obvious case of non-discrimination. He is treating this couple exactly the same as everyone else. But, what about when the baker will sell a stock item but not make a specialty order? This is a harder case. From the couple’s perspective, the baker’s conduct is odious, discriminatory and hurtful. They are being told they are not good enough to be worthy of this man’s efforts. I think this is the point which the baker and his supporters overlook. Regardless of the motivation behind it, the behavior caused serious harm.

From the baker’s perspective, he is being asked not just to sell a cake, but to affirmatively create what he views as an edible work of art. What if the couple does not like his design? Can they sue for discrimination by alleging the design was a form of bigotry? Can the State of Colorado compel him to make a cake – isn’t this more like compelling speech rather than allowing free speech? I think this is the point which the couple and their supports overlook. The baker is not being ask just to sell something standard, but to create a unique and special item. He will necessarily have to be intimately involved in the creation for a purpose he opposes. And there is likely some level of concern that any perceived flaw, no matter how small, will subject him to liability.

As fascinating as these issues are, the Supreme Court ultimately did not address them. Instead, they ruled the State of Colorado went too far in its treatment of the baker. Some of the comments of the members of the civil rights commission were deemed to show outright bias against claims of sincerely held religious beliefs. As a result, the Court struck down the State’s conduct without addressing the baker’s conduct.

So there you have it, the first edition of This Month in the Law! I hope you found this informative. Look for another column in a month or so. Maybe we can even find something to discuss besides the First Amendment!