Freedom of speech and religion are two important civil liberties protected under the First Amendment to the United States Constitution. Freedom of speech extends to both traditional verbal speech, and expressive conduct also known as symbolic speech. Burning a flag and wearing a t-shirt opposing a political leader are two examples of symbolic speech.

Conduct remains at the heart of symbolic speech claims. Thoughts, ideas, and opinions are powerful and courts have decided to protect them in certain scenarios. However, the conduct’s offensiveness or irrationality can never be taken into consideration when deciding whether or not the conduct deserves First Amendment protection.

In Cakeshop, David Mullins and Charlie Craig, a gay couple, were searching for a cake for their upcoming wedding ceremony and ended up in a Colorado bakery, Masterpiece Cakeshop. Much to their dismay, the baker, Jack Phillips, turned down the couple’s request to design their cake.

The baker told the couple he could not design their wedding cake because he was a devout Christian and his religion opposed gay-marriage. He did, however, tell the couple that they could purchase any other wedding cake as long as it did not include his own designs.

Baffled and humiliated, the couple filed a discrimination charge, also known as a complaint, with the Colorado Civil Rights Commission. The couple alleged that the Baker’s actions violated Colorado’s Anti-Discrimination Act (CADA), which prohibits “discrimination based on sexual orientation in a ‘place of business engaged in any sales to the public and any place offering services to the public.’”

Phillip’s argued that forcing him to design a cake for a ceremony he opposes on religious grounds, would force him to engage in religious activity that went entirely against his religious beliefs and would therefore, violate his First Amendment right to freedom of religion. The Colorado Civil Rights Commission, Colorado State courts, and the Colorado Court of Appeals were not convinced.

On Appeal to the United States Supreme Court, the baker raised two arguments. The first was based on his freedom of speech and the other was based on freedom of religion. But ultimately, the Court decision was based on his freedom of religion argument.

The legal battle resulted in the U.S. Supreme Court reversing the lower courts’ opinion and, in a 7-2 decision led by Justice Kennedy, ruled in favor of the baker.

The Court focused on the way the Colorado Civil Rights Commission had unfairly handled the case. Specifically, the Court was concerned that the Commission’s decision was tainted based on its distastefulness of religion.

Justice Kennedy elaborated that on multiple occasions, inappropriate religious comments were made by at least one of the commissioners. For example at one point a commissioner stated, “Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” During a second meeting, one of the commissioners described an individual’s religion as “one of the most despicable pieces of rhetoric that people can use.” In fact, Justice Kennedy’s majority opinion also noted that the commissioner “even went so far as to compare Phillips’ invocation of his [religion] to defenses of slavery and the Holocaust.”

While the Cakeshop decision is not quite a victory for gay-rights, Justice Kennedy did raise several points that cannot be overlooked. First, he wrote, “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. . . . The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

He later stated that Colorado’s anti-discrimination law was, “a law that protects discrimination on the basis of religion as well as sexual orientation.” At the end, and while admitting that the public had to unfortunately sit back and wait for further clarification, the Court made an important statement that could influence future court decisions. Justice Kennedy wrote that in the future, “[t]hese disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

In sum, the U.S Supreme Court may have answered the underlying question, but it left us with an even bigger question: how does this case affect gay rights? No matter the interpretation, the fact remains that speculating the outcomes of future decisions is all we can do for now – or at least until the U.S. Supreme Court clarifies.

Although one legal right should not trump another equally important right, one argument is nevertheless going to persevere in a court of law. Choosing the right attorney could be the beginning to a different ending.

The lawyers at Famighetti and Weinick, PLLC, understand civil rights but most importantly, we understand you. If you have questions about the First Amendment or anti-discrimination laws in New York, contact a Long Island civil rights lawyer at Famighetti & Weinick, PLLC. Our website is https://www.linycemploymentlaw.com/ and our phone number is 631-352-0050.

Today’s Long Island civil rights blog was written by law clerk Thalia Olaya.

Today’s Long Island civil rights blog discusses whether President Trump’s twitter feed is a public forum subject to protections of the First Amendment.

The First Amendment provides different protections, or even not at all, depending on the type of forum involved. In public spaces, three different types of forums have been recognized: (1) the traditional public forum; (2) a designated public forum; and (3) a non-public forum.

The two forums where citizens enjoy the most First Amendment protection are in traditional public forums and designated public forums. Traditional public forums are areas where people have a long history of enjoying First Amendment protection such as streets and parks. However, convincing a court that a certain space is a traditional public forum is not easy because the law imposes a strict legal test to determine whether a public forum exists.

On the other hand, designated public forums are spaces the government has opened for expression such as theaters owned by a local government or a meeting room at a state university. Nonetheless, in both of these forums, the government is allowed to intervene to impose some restrictions but not restrictions based on an individual’s own personal views. Otherwise, the government would be engaging in what is called viewpoint discrimination.

With technology becoming increasingly popular and social media becoming a space that is wide open for public discussion and debate, the forum classification process has become more difficult.

On May 23, 2018, a New York federal district court had to grapple with this exact issue. The peculiar addition in the case was that it also involved the President of the United States, Donald Trump.

In Knight Institute v. Trump, a group of seven individuals sued President Trump and his communication team after they criticized the President and his policies on Twitter and were shortly thereafter blocked from the president’s own personal Twitter account, @realDonaldTrump.

The main issue in the Knight Institute case, was whether President Trump’s Twitter account was a public forum. If so, under the First Amendment, President Trump would be prohibited from blocking Twitter users because of their personal views about him or his policies.

Most Twitter users are free to block any other user from their account without consequence. The president, however, is a public official so his actions in blocking users from his Twitter account implicate First Amendment concerns.

In the Knight Institute decision, Judge Naomi Reice Buschwald first went into a detailed overview of Twitter and described its functions and technicalities, including the process of blocking and muting other Twitter users. Judge Buschwald then discussed how the president uses his @realDonaldTrump Twitter account to post matters related to “official government business” such as his Administration’s upcoming legislative agenda and his visits and engagements with foreign leaders – just to name a few.

Although not mentioned in Judge Buschwald’s decision, President Trump does indeed have an official @POTUS Twitter account and an official @whitehouse account, however, the suit at issue involved the President’s actions on his own personal @realDonaldTrump account, which he nevertheless uses to post about government business.

As a result of the President blocking several Twitter users, they were unable to view what the President posted (also known as his tweets), and they were unable to reply to his tweets or view any of the comment threads associated with the @RealDonaldTrump page.

While the blocked users could technically get around the block by using alternative methods to view the President’s tweets, it involved additional steps that other non-blocked Twitter users did not have to use.

The New York federal district court ruled that President Trump is not allowed to block users from Twitter merely because an individual’s views are contrary to his own. As Judge Buchwald wrote in her 75-page decision: “no government official – including the president – is above the law. . . .”

In ruling against the President, the Southern District of New York decided that parts of the @realDonaldTrump account were indeed a designated public forum. The court, however, was careful to narrow the scope of the area considered to be a public forum to only the “interactive space” of the @realDonaldTrump account.

This encompassed the space where Twitter users could “engage with the content of the President’s tweets.” In other words, only the space where Twitter users could reply and retweet to the @realDonaldTrump account was deemed to be the interactive space in which the government may not intervene and silence users.

In sum, the Southern District’s decision is an important reminder that as new forms of communication and technology continue to grow, the legal framework used to determine the Constitutionality of government officials is also likely to expand. After all, social media pages including Twitter, Facebook, and Instagram are the new communication platforms of today and love it or hate it, they are not going anywhere anytime soon.

If you have questions about the First Amendment or social media and the law, contact a Long Island civil rights lawyer at Famighetti & Weinick, PLLC. Our website is https://www.linycemploymentlaw.com and our phone number is 631-352-0050.

Today’s Long Island civil rights law blog was written by Law Clerk Thalia Olaya.