Transcripts For CSPAN2 Law 20240703

Related to speech and expression, social, political, artistic or sometimes none of the above. Sometimes the tradeoff society where we want to speak only what we believe but we may adapt where speech became before us but we were credit for what we create. This involves a balance between unrestricted speech and sounds against other values. When does unwanted speech crossed the line into criminal threat . Is when we can determine whether it is a threat and intent on the speakers part matters. Turning to another case, the freedom of conscious and wish to speak should the government mandates access to the speech or public Accommodations Office conflict . When must be having part of another encourage creativity while incentivizing the work . These and more are raised and partially answered by cases and articles you will hear about next. Will briefly discuss the review to set the stage of you all for discussion and keep the bios short because there full bios at the back. First of, clay calvert, former director of the First Amendment project in florida and being on counterman versus colorado. The annual constitution symposium, im going to end a little bit of time for this afternoon talking about the Supreme Court decision this june and criminal law case of colorado. The really counterman for online talking causing serious emotional distress. Specifically over the course of several years hundreds of Facebook Messages colorado singersongwriter with whom he has no prior relationship and a total stranger called and not off permanently and it will tell you. The messages and new heard movement in several times on facebook but kept coming back so he kept powering them in cost to cancel several performances and turndowns in the colorado jury convicted the online stock and causing serious emotional distress. Protected by the First Amendment guaranteed free speech because they argued this is not rise to the level of unprotected true threats of violence. Stocking conviction could not stand because his works did not fall into one of the few categories United States Supreme Court held protected by the First Amendment mainly true threats of violence. When exactly announced the threat of violence outside the production. Compared to other categories of speech might think about, incitement or obscenity, the truth is relatively new as the Supreme Court has recognized, in 1969, the court overturned the conviction for Lyndon Johnson during 1966 antiwar rally to the Washington Monument so complaining about these, 18yearold watts told the crowd they ever make me carry a rifle, but first man to sell, they laughed. The court deemed political hyperbole stresses the First Amendment does not safeguard true threats which failed to define in 1969 in 2003 the court offers partial definition and observed, states with the speaker means to communicate a serious expression of intent to commit acts of unlawful violence for particular individual or group of individuals. What does that really mean . It was unclear they disagreed with this for the period that actually required to attend to threaten someone they communicate a message that came to be understood as starting person to whom it was received . The court tackled. The speakers mental awareness about statements in their. Doesnt matter usable present in a message threaten an important position. A drone might be misunderstood, may never have been intended a way normal fears for being will be able to have the censorship and expression of statement protected by the First Amendment. Fear of liability as sometimes they are sensitive times when it comes to sort out whats a threat. Objective reasonable standards can turn out to be subjected left in the hands of jurors. Taking into account speakers state of mind regarding the threatening nature sometimes me safeguard this and prevent a person from being convicted is not morally culpable. On the other hand intended to protect people from certain harm in the Supreme Court stated the design to protect individuals from destruction that it engenders and the balance will in fact occur so the jury was not asked to consider anything about his state of mind what he knew or incentivizing statements. What he thought did not matter. All that counted was if it would find it threatening so courts should consider the state of my turning their awareness or lack there of, threatening nature of what they communicate. He could try to balance the First Amendment protecting speech on the one hand the interest in protecting the victim from a terrifying life disrupting harm on the other from threats and heres what the Supreme Court concluded. Ive just a story and elena kagan and barack obama of 20 during practices from across the ideological political spectrum, namely chief Justice John Roberts and samuel alito, to push appointees and the donald trump appointee Ketanji Brown jackson, joe biden of 20 concluded the state of mind these must be considered when deciding the threat. More specifically this is the rule the Court Created quote consciously disregarded a substantial Risk Communications could be viewed as threatening, three parts. Consciously disregarded, and risk and threatened by recklessness. Recklessness has done more than make the mistake and accepted substantial risk of harm because the jury was not asked to consider this, the Court Conviction back to colorado retried without the Standard Wheel or such, a lot of interesting matchups between the justices, believed a higher level of recklessness in this case specifically for believe the government must prove purpose to put a person in fear of violence. Its not enough the speaker was aware of substantial risk of harm will disregarded. In their view, the government must prove speaker actually intended to make the target feel threatened so it should be noted somewhere in between the highest level with intent or purpose and power level, there is a number level of knowledge, the speaker might not have intended to put a person in here but instead knew the target would be fearful. They both issued the opinions. They believe the objective state of mind about threatening meaning whether intent, purpose, knowledge or recklessness, basically irrelevant. All they must prove is a reasonable was your full. This is the least free speech from the possibility and uphold the production. The bottom line being the court adopted recklessness standard or mental state. The government must demonstrate a defendant consciously disregarded a Risk Mitigation is viewed as threatening violence. Those five justices nominated by four president s from two different parties so free speech can unite despite their political ideologies although we will hear that was not the case with this. Next up is christopher greene, professor of law at the university of mississippi. That was a beautiful segue interrupted by 303, one of the big cases and conservative versus liberal, i got a lot of press i think, most people are pretty familiar with it but should colorado five years ago in the masters cake shop, a free exercise case, for special election caps off, 14th amendment so masterpiece they said is going after this fact philip because of hostility to religion, but the 303 case, about websites. So if you go to a wedding, a weird one so if you got something to be green, my grandmother was there, 1 foot turned green so anyway, this, and what, what she had this idea, and the winning and will want to see only the this service so i told my kids and they said who were the people who wanted a website . There werent any people because she colorado would come after a lot of coverage when it first came out and gave the impression the case about whiteness which it was not but she obviously had no controversies with the state of colorado but no particular couple came saying we want a website lori smith conditions, she filed a federal lawsuit on this while from getting in the lori smith house monopoly on lori smith, as part of this wild theory that didnt get much on the second is that maybe there will a firm, fox kind of wacky and that was right thing it violates me right under Employment Mission and overruling we are going rewrite this and its about the there was another brief theory that i was on and it was back so is very at Harvard Law School and some friends of his this was about the in pretty extensive form. As you read the opinion spending like three or four pages really going like singers right in all of these cases saying what is a theory . My theory is we should reinvigorate Public Interest doctrine from illinois as applied to samesex wedding cases, if you could get service somewhere else with no additional hassle at all, access due to relevant goods, theres no reason for a particular person to apply this other than the desire to have that persons view suppressed because thats not a legitimate interest unless you have scarcity, you dont have a genuine reason. Senior and his colleagues say that not the right history of public accommodations law. They say public accommodations is about to independence, specifically they say business offers to serve the public, any business at all offers to serve the public, its subject to serve all equally so not limited to any particular kind of business. This is contrary to something Supreme Court said in 1923. Charles says one does not devote business to public use will close with Public Interest merely because of commodities and cells to the public. Why wouldnt the court want to cite this case from 23 . Of course its phobia. You dont have to go full locker to get there so what i want to do and what a lot of scholars want to do is have a tradition and equal citizenship approach to economic entrepreneurial liberty as well as other things under the 13th amendment to First Amendment . Was the first word . Congress. Youre not going to be able to go and its going to be proper. Why . 1791 federal government that has no power over occupation. How do i know . They didnt have the power to prohibit slavery. Article one section plus one so if we reinvigorate the Fourth Amendment and go back to tradition accommodation, youre going to find these rationales. He find some cases saying public accommodation for businesses that serve in the public and you will find cases saying these laws are for accommodation of people whose circumstances of blinds them to trust particular people so it is a case from 1703. From 1701 anyway, theres a lot of historical debate and i invite you to read the article. Basically they look at a bunch of cases saying its for businesses for everybody and they look at these, dont look, they dont mention cases that say it is tight circumstances of scarcity. Basically i mentioned online or twitter or something saying about cox, what about 19th century cases that talk about scarcity . There are more cases that talk about serving the entire public rather than different rationales what we should do is look at all to see if you can have integrated rational self 1701 case written by the same author the way we should think is this. If you are a railroad or surveying difficult scarce situation and you make it an offer to the entire public, come on the railroad and use no particular places and then you say its going to be an extra 3000 in, store your laptop in a safe or something, you got them over a barrel. The offer to the public causes the scarcity which requires the public accommodation so thats my story of how you put the rationale together. Certainly look at charles wolf, that is the picture you get, there are particular pieces of evidence, line in the 1914 article for the article says nowhere is monopoly suggested distinguishing characteristic that she reads saying nowhere in the discussion of public accommodation in the entire history of the 19th century is discussed talking about the early 18th century, hes not saying it had nothing to do with monopoly, hes deciding the Historical Foundation so anyway, theres a bunch of details if youre interested which of course you should be and virtually all of you are, im sure but the thing that is most encouraging, not criminal from the justice and this long distance, it makes me think that it is expected on this ground and given the weakness, it seems like this battle has come maybe another five years. Finally, we have gregory, associate professor of law at the university of baltimore senior litigation counsel recently served as resident associate justice of the Supreme Court speaking on to intellectual property cases and jack daniels properties. Its been ten years and its nice to be back. Its kind of odd to me to be on this panel because First Amendment issue in this case are sometimes very secondary in these and construction of case so to intellectual properties but in both cases it was kind of the undercurrent because they claimed to have the First Amendment notwithstanding this so let me talk about the cases and why this was one case where the First Amendment concerns the short end of the argument in my own to begin with this easier case, so you know the trademarks unit if you dont see the label, 90 degrees or we all know dennis had particular number seven so you see all of the features and that is the purpose. You have trademarks and they recognized. You could be driving down the highway and you see it down the road and you underneath and you see a car and they need to come up will. They make these and one was shaped is where bottle was formed similar to jack daniels law, its wrong and instead of saying Tennessee Whiskey for this recipe, it says number two on your tennessee carpet and they call this bottle not jack daniels, they call it bad daniels. Apparently he didnt see the humor in this so they sued on Trademark Infringement meaning these consumers, the joy would come from the same producers as jack daniels and they sued arm this word, disparagement of the mark. There was a trial and it included they are confused or there is this confusion and trademarks over and i teach in this language no space is a joke, right . And brain cells knows thats what happened. It is that humorous sarcastic entry into the market and thats how it got to the. And they rejected that here. Essentially sure, there may be instances where you do need to talk about the mark and use the symbol to comment on the mark so the movie super size me, super size is a trademark of mcdonalds and in those, not to sell your own, mcdonalds has terrible food in her a good car or your own but as a comment, of course you cannot make commentary on anything without naming that thing. I suppose the one that uses assistant not really based on this, you could describe that but that is inefficient to set Apple Computers are good, bad, indifferent, whatever. Justice kagan says there is this narrow set of circumstances where youre not having this mark but it is used in another way and there is this case that came up a while ago. He made a movie and authorized this, you are using my trademark to self your own movie but how else are you going to shoot a movie about a couple who model their life . Although you use this trademark, its not about her, and it is way too far. In every trademark dispute, from now on the first step of the inquiry is, is there a potential First Amendment value allowing people to speak . There is a value about humor and justice came in, thats not how it works. First, figure out if you are trademark violation and may be you will be able to use the First Amendment defense even if it is exists. By the way, the defense, come on, Everybody Knows this is a joke, Everybody Knows that humor but if that is true, it seems odd was a matter of fact finding, the court could be confused. Of course its a joke, of course just making fun of jack daniels but we know this defense, im not quite sure this is the case and if you understand, through for the photographed, it is very helpful in what they are debating about. One of my professors said a picture is worth a thousand words. People can look at that so a famous photographer took a photograph of the late artist, she writes a onetime use and she paid money and took the photograph and got the license turned the photograph over who adjusted it and rotated it totally within permission granted and they printed the article and transformed the photograph and that was that but so loved the photograph and numerous colors based on the photograph and etc. The fact that one died in the rush to publish more studies, a lot of magazines were speaking for the period so they published the 2. 1, it was not initially in vanity fair and the photographer instantly recognizes this and send a letter and what are you doing . This is my photograph, my copyright. At the very least you ought to pay me loyalty and this is america. They just went to court and we are not infringing and even if we are, we have a First Amendment sketch to write because our work is transformed and that was the argument and kagan wrote this opinion a few weeks prior in the First Amendment but side is kicking and robert in the opinion so he writes this photograph here is kind of the baseline. Its not just slap some paint and holiday. Those of us have seen, thats not nice but that is not all there is to it. The question is not merely whether it resulted in a different work of art, of course it did. The question is whether its the type of difference. There is a real tension and it requires or reserves this work but on the other hand it allows others to use this. This is the real you want to comment on others movies and etc. And just as kagan said i quote, majority should go back to school. That is, the tone of the opinion but ultimately they dont really get that issue. Instead, they talk about various tests and with the world look like with copyright law applied in lawrence and whether or not the great painters but kind of just as kagans points, both photographs and these paintings serve the same purpose, i think both are there arguments. These points i make in my article is that people tend to forget copyright, trademarks and trade secrets, they are property. If you recast these cases as a property case, they start making sense because, of course get a bunch of Property Owners and go outside right now and protest whatever you want to protest. He cant quite catos lobby, you can do it outside, cato is also, you can use catos name but you cant in the auditorium unless invited so trademarks and copyrights, you can talk about how good or bad mcdonalds is, how could or bad jack daniels is, but you cannot use the trademark itself to sell your own. You cant try to rewrite somebodys Properties Like you cannot in the lobby because its cold outside or hot. So you cannot take jack daniels bottle to your own would be better. You cannot take somebody off the photograph of your own baseline. You can make your own painting different and say its a terrible photograph for a great photograph or do it this way or that way but you cannot take that photograph and repaint it and say now i want to buy my product because i have a different cake. Not on print, not on the outside but on the front. If you look at both of them majority concerns but also saying we have majority renaissance, would never have multiple casings, but thats not true. Everybody over 100 years ago, everyone is free to copy the copy is private property. If you think of will both make sense and it could have been 20 pages shorter and way earlier my thanks to all three of our panel, he say cato is terrible but we do invite them to take that occasionally. I remind people watch it online, and take this on the webpage using cato, ill start by asking panelists have russians. This First Amendment case which i think is what it boils down to and the relevance and the Supreme Court case coming out, efforts by state governments for the social media platforms they have to speakers against their will and interferes with their editorial decisionmaking. Florida law says many qualified candidates for state or local office cannot be platforms, regardless how many times they violate terms of service on the platform with over 100 million views in revenue, those are right cases. Why should they be compelled to post an individual and give him platform after the individual repeatedly violates their rules and terms of service. We usually think about government but now we say social media platform in its own policy so you are being compelled to post speech when you dont want to post it so will be interesting and is limited to a want to compel whats conflicted with religious beliefs or is it a combination of policing recently antiabortion Pregnancy Centers could not be enforced to convey the message and you have a right to free or lowcost abortion and saying you are not part of the union you cant be compelled to pay money, we see this evolution so i think it is this important down the line, assuming these cases, hes like the phoenix so i think it will, i think 303 created this. The ground about whether facebook and all these things are like a railroad is a super important issue in one of the opinions that really got into this issue, twitter and on the affected of Public Interest . Justice thomas and biden versus freespeech institute, sounded like it was a bridge, build your own facebook. Its like just swim across the stream. Remember myspace . And probably looks like a railroad back in the day and facebook came along. A lot of people unhappy with that. I never know exactly but people are trying. I think ones like that the case where i like to talk about charles wolf . Thats where i think it should be thought. I think i would take a slightly different angle. Facebook and google, are they post or common . For liability i would say i just post, people post stuff. If you send me a notice, i will take it down but my hands are clean here. But you got to behave like that. I am choosing to speak or edit or editorial is now they will have to pick elaine and the court will have to pick which one it goes down to and section 230 preempts the underlying issues there in florida or texas or do we take the First Amendment part because the platforms would argue editorial policies and allow for speech or dont. We are creating a speech of unity establishing what we allow so it will bring those questions. A lot of ways with the federal government putting this pressure, what are they doing, are they departing from this approach properly . It seems like they will take those. I would think it would make sense for those on the same term to make it coherent but one might be before the january cutoff. The internet based service providers, it is going to be a panel later on and that will be huge assuming they take it in Justice Alito on friday decided to delay enforcement as modified until basically midnight friday and the government, the plaintiffs have until wednesday to file in response to the Biden Administration so that is the case on how much leverage and pressure and persuasion you can put on providers before it crosses the line by social media providers in the First Amendment which raises the First Amendment action question. Ill shut up. I will note, cato filed the circuit and one thing we focused on was political and the monopolized media on the conversation. Now you have the conservatives and governors of florida and texas saying we have to mandate access to the social Media Companies so it is interesting, is it ideological or which media is on your side. The party got a couple of questions online. Public accommodations law, would it be okay for africanamericans as long as there were a nearby restaurant, why not . It seems general principles that govern this are going to apply the big original source that i give was the distinction made in 72 between private social rights and public rights in and those were rays cases so some conservative folks say what we want is a different set of principles and disputes about samesex marriage then social interaction and i certainly think there is a big difference between those but in terms of do you have to have scarcity . If you look at the title to discussion, legislative history civil rights act, he is very entitled to illinois and chief justice hale written in the 17th century so i would apply the same rule to the race cases. Restaurant will have a physical footprint different than an online situation so figuring out when and whether scarcity will be a different question or an episodic thing for bakery for a wedding so one restaurant at that stop, it will be a lot easier, it should be easier to show scarcity in a restaurant but i dont think there should be a difference. This is my own question, is there any distinction between scarcity and necessity . Typically people have a certain category and things they need to do from one side to another, is there a distinction between those some might say is not necessary . Is talks about the necessity circumstances apply but didnt have to go on this trip in the first place. You have to engage on a commercially related field. He look at the act of 1875, it applies to places of public nuisance. Whatever you say about public amusement, it is not essential. I couldnt watch Office Reruns or something but how important it is, i dont think that fits the history. We have a question about current events, some believe after countrymen whether trump disregarded the available evidence, a significant Election Fraud and it will be limited so there might be a distinction between belief about the truth of what you are saying. Is about the truth, when you come into these that may relate to trump, not about the election but incitement to violence and that is a different category, before the instance there, did insight imminent walk . That is a different question. The trunk part will be interesting in defamation cases, what does he know and what does he believe . Part of this recklessness comes through in defamation law and its one reason Justice Thomas objected to it because the because thomas sees the malice standard in defamation law which basically says if you are defaming a public official or public figure, the public official has to show you knew the statements were false when you published them or that you acted with reckless disregard for the truth, that the recklessness part. The question that comes in is if you are in an isolated bubble of knowledge where you seriously believe things are one way and you dont know that they are false because that is where that could come into play. Thomas to go back to didnt adopt we have a pure objective test, wont take anything about subjective state of mind, thomas didnt like it for a different reason, thomas said actual malice is legislative driven policy decisions by the Supreme Court with no historical text, history and tradition for adopting that standard now. Taps into a little bit from different angles. The court drew a distinction with incitement and said we need more breathing room, a higher standard which is so often adjacent to political speech, you can have a politician, trump is an example or just in general, Harsh Criticism of the government or law that can come close to the line of incitement, with breathing space there. Do you by the decision that is more important for political speech adjacent to indictment . I endorse the brandenburg standard runtime at of violence but a judge requires a speech directed to inciting or producing imminent lawless action and likely to result in that, the were direct means intent, the highest level, we talked about mens rea purpose or intent to do so, so that is i think good law to have out there. First Amendment Law is a grab bag, the fighting standard doesnt have any mens rea, it simply personally abusive 1on1 facetoface situation where the person is likely to swing back and hit you. Doesnt matter what the speaker thought or believed. Absented he law is knowledge in terms of position. If i have something that turns out to be obscene whether it is or not until the court tells me, if i had knowledge of the contents of it thats enough. In the First Amendment we go from fighting words to know mens rea requirement, just personally abusive epithet likely to make me swing back and hit you 2 incitement of violence, did i actually intend or have purpose of leading people to commit violence and now we have a true threat, this lower tier of recklessness, substantial disregard that the message will be interpreted as threatening so we are all over the board and First Amendment cases. In terms of breathing space, its hard to see what the breathing space argument is, newer times versus sullivan, we need an open discussion about civil rights but the idea that we want to make space for really aggressive courtship rituals of, like, a kind that terrify people and cause them to shut down their careers, i would be inclined to label the value of that as the year. At low or no value speech. That is why if you think about it, we have the buffer zone of actual malice and defamation law, reckless disregard because the media reported Public Officials at matters of public concern, they need breathing room to certain mistakes in true threats, we talk about the fear it engenders and the disruptions of that fear, such low value speech. Thats one of the reasons. Lets go to some questions in the auditorium. I see a hand back there, please state your name and affiliation as well. Im an attorney from fairfax. I havent had a chance to read counterman. Does anything and that implicate other theories of criminal liability like, for instance, harassment, i told you to stop calling me, told you to stop posting on my Facebook Page and yet you continued . Good question because counterman was a stocking case and not truly a true threat case. It happened to involves talking, you can stock somebody without engaging in true threat of them. I called multiple times, hung up the phone. I followed them around but im not saying anything to them and thats one of the issues some of the justices were concerned about, so tomayor was concerned about that. In the context of simply that they had to address it in this case, a true threats case, then she wants a higher standard but it comes down to pure stocking she would be okay with a mens rea statement but to answer the question, its just limited particularly to the true threat doctrine. I shouldnt say this is the last thing, theres a difference between defining a threat in the mens rea requirement under statute and the First Amendment question and what the court was addressing is the First Amendment document true threats, what does it take to push it outside the scope of First Amendment, not just the mens rea requirement that a statute might require, so its not statutory. It was very limited in terms of the through threats. Poon rather than harassment. Jonathan mitchell has this view where he thought the Supreme Court should be able to review application of state terms under constitutional doubt which is a wild theory but too bad 1257 of the constitution, another question . While we all ruminate i have a question for greg. It seemed the court distinguished between where adaptation is used. Maybe i miss reading it but it is important, the fact they were using a cover of a magazine the same way you might have used the original photo and if you put up the display where you wouldnt possibly put up original photos that might be okay. Is that how you took it, to make distinctions not just about whether you can adapt and how you can adapt and where you are using those applications and do you by that . I dont know. I wouldnt recommend reading sotomayors opinion, its not wellwritten. If shes making a distinction the distinction is because the question, the fair use question is poor criteria and the one the court was debating is in the nature and character of abuse. She kept saying these are the same matrix terms, this can be put in a magazine, that can be put in a magazine so they are all the same, therefore one is not a fair use. What if she didnt put it in a magazine but in a museum . We can play this game all you want. I could put a photograph in a museum as well. So what sotomayor, dont want to blame just her, 6 of the justices signed on to this. New gorsuch joined the majority as well so the blame should be shared. What soto mayor is doing is not clear standards whether or not it can be put to the same use because at the end of they you end up with all the way down, just asking a generality like a book and a movie, you can tell the story in both of them, one you tolstoy more visually in the other you tell the story more auditorily as you read it to your self but they tell the story but a very different. And number 2, the fourth criteria in the four part test which really does look at whether or not theres a common constitution going on. Thats factor number 4. Do trouble count. A much better way of looking at this is what is the purpose . The purpose of criticism, the purpose of commentary, the department of education, a class called great sinema, we would watch the movies and something. Thats a nice class. It was great. We could nap through it and you know what you were doing. Had to read a paper about it. A high school paper. In any event the point is in order for me to write a paper about a movie i have to see the movie and havent shown to me. In the situations it could potentially be various, you can say i want to criticize a scientific article saying you didnt take this or that into account this equation are this data or whatever, you have to have a quote, not taking your words, thats fair use. But if im just using your work, saying its now my work, that is different, i can put it in a scientific journal competing with each other because i am trying to present the outside world through your eyes and through your eyes as a bypass. Thats a problem. Did we consider putting the photographs in as fair use into the article . I could imagine that the Supreme Court didnt have any problem. Who is going to tell them now . There printer is more advanced. In the 70s and 80s, the first Supreme Court opinion where you have nudity and color in photographs. In both of the two cases you addressed the court issued rather narrow opinions especially on the transformative purpose of character like you are saying and more hock the court unleashed this significantly transformed the comment on the original years ago and addressed in the two live crew pretty woman case and i think there was a lot of hope that the courts would clean up this, what is transformative use and what are the standards, and the court just didnt go there. Made it worse. Made it worse. I think we are disappointed. As for the bad spaniel i thought it would be a good idea to have a couple spaniels on the floor show them a chew toy, the jack daniels and say what do you think . I dont know. We have an online question for chris. The you think colorado could require business to put up a sign announcing that it wont provide, that requirement also violates, saying could you force lori smith to say we dont offer a samesex wedding . Yes. I am 1 14 amendment person. In terms of the scarcity, it would go onto the next door instead of having come in and have a 302nd conversation or several minute conversation first. Lori smith doesnt have a door, just a website, no scarcity at all. Just go to a different website. Should be required to have a little disclaimer on her website. It is hard to the question i would ask would be to what extent this is genuinely making competitors easier to find, avoiding wasted time on the assumption that she would do other things. In lieu of anything like that, i would think even the smallest imposition, you would need justification for operational freedoms in the optical world. If you got into a dropper historically grounded protection for economic liberty, whats the point . It cant be just like we want a machine for lori smith that thats not a legitimate interest i dont think. With the doctrine of purely factual and noncontroversial disclosures but nowadays some states are selectively, maybe not controversial information but the selectivity of what is purely factual information to the force you disclose and what do they not with ideology behind it. Sotomayor just said especially horrified at the idea of somebody having a sign that says we are only serving certain kinds of weddings, not others. The problem with that is you are allowed to do that even if you are not in the business. Imagine somebody walking down the street, door number one is somebody like lori smith and Jack Phillips that only provide services for samesex or opposite sex, door number 2 they can get services for any kind of wedding, door number 3 is stuntman who has gone out of business but has a little sign saying i support Jack Phillips and lori smith, they are going to be just as offended at that little square saying i used to do this until i was forced out of business. The same message, just as apparent to peoples dignity as the one who is still in business. It is pure speech, no reason at all to shut that down other than i dont like your speech so once you make that decision getting additionally upset at the sign doesnt make sense. Riley stevens, lj c. On this scarcity that youre talking about theres harm in being turned away, right, not just that the argument is it is not just that we want to disapprove of Jack Phillips by telling her hes a bad person, but people get turned away, theres an injury there, and in solve that exists even if you can go get a cake somewhere else. It is not quite as narrow of thing. Conceivably theres some sort of surprise issue, if you look at history of litigation involving Jack Phillips, these folks are looking for it, a lot of them. Conceivably you could have some sort of interest in not being surprised in which case, having assigned out front would redressed that. Questions in the front row. That might be a rationale. Let me follow up on that. The old common law, an invitation to treat, it arose in the context of open to the public. Therefore creates a kind of unilateral implicit contract, therefore cannot discriminate against a person coming into his and poirier but becomes a question of invitation to discuss the terms and price of product and so forth and this in turn is used to distinguish in the modern context between being perfectly open to sell a cake with a rainbow on it intended for a childrens Birthday Party to a samesex couple, as from a special, in future performance for a person who finds it religiously offensive, a muslim baker required to create say a black baker required to create a cake with a Confederate Flag and the like and the distinction is drawn between offtheshelf stuff and special performance in the future to draw some kind of line. Perhaps you could address that a little bit. On cases like cogs acknowledged as a rule about sort of it is limited to certain circumstances. A lot of 19th century, some dictation, a bunch of stuff, one thing about the rule which is serving all commerce but for the rationale of this, talking about people in difficult circumstances necessarily requires them to trust these sorts of things. Right on the dot we have to wrap up the pile. We will take a 10 minute break, refreshments are available in the winter garden, no food or drink allowed in the auditorium. We will reconvene for panel 3 at 2 25 on the dot. Big round of applause for an excellent panel. [applause] thank you