January 29, 2015

Freedom to force the artist’s hand

Some people have jumped on what I think is an incoherent bandwagon that creates crazy consumer rights.

File:Colorful three tiered wedding cake LCP.jpg
An uncontroversial wedding cake that the
baker could've declined to decorate
 for dislike of flowers or the color pink.
photo by tracyhunter

Under federal law, public accommodations are places where consumers go to receive a service. Consumers can’t be kept out of or denied services at public accommodations because of their sex or other protected attributes. [It's true that under many anti-discrimination laws, sexual orientation is not a protected attribute. But it should be. It's fair to allow people to go and buy regardless of how they self-identify.]

But regardless of who they are, consumers have no right to demand specific services. Sure, if a service is offered, it should be offered to all with only limited exceptions (like those based on age or individual behavior). But consumers generally can’t force a business to offer any particular service. You can’t sue a store for not selling alcohol, cigarettes, or the "morning after" pill.

That basic principle seems straightforward enough and many of its applications are uncontroversial. For example, a movie theater is a public accommodation. Movie theaters can’t kick people out because they are Mormon, but they can legitimately choose to not show Meet the Mormons. Likewise, museums can't deny entrance to women, but they can refuse to showcase feminist propaganda.

But when it comes to cake-decorating or photo-taking controversy suddenly abounds.

A bakery is a public accommodation. Of course, a baker who makes cakes should make cakes for anyone who wants to buy one (and I think regardless of what people plan on doing with their cakes). But bakers may refuse to decorate cakes in a certain way. Maybe they are morally opposed to conveying certain messages in their art or maybe they simply think the consumer’s design would turn out ugly.

If a baker doesn’t want to write “Gays are going to hell” or whatever on a cake, she shouldn’t have to. If a baker doesn't want to put gay figurines atop a cake, she shouldn't have to. It goes without saying that the cake-buyer can go home and say whatever he wants to say with his cake: He just can't force somebody else to say it for him.

A photo studio is a public accommodation. A studio may not deny entrance to protected classes of people (and yes, as stated, those classes should include LGBT communities). But studios may refuse to create certain types of pictures for various reasons. For example, a photographer may refuse to create pornography. While some forms of pornography (like child porn) are illegal, many forms of pornography are legal. But just because something is legal doesn't mean a photographer must capture it. A photographer, as an artist, is defined in part by the art she creates and the messages she sends through that art. The freedom of speech protects photographers from creating work which sends a message they disagree with or they simply feel is not in good taste.

If a photographer doesn’t want to capture a particular type of wedding, she shouldn’t have to. Maybe the wedding is on a Sunday, maybe alcohol is being served, maybe it is because the location and lighting will be terrible, or maybe it is because it is a gay wedding. Yes, I said it. What difference should it make whether the photographer’s personal reasons seem petty, unpopular, or nonsensical in the consumer's eyes? 

Why do some people favor forging a law that would force the artist’s hand? First, don’t you think the odds of getting the quality of art you want drops dramatically when you’ve dragged the artist against his will? Second, what about the artist’s rights? Artists should not face lawsuits, not to mention imprisonment, for choosing not to convey certain messages in their creations. Please, let's keep our country the kind of place where no artist is chained to his easel. 

January 06, 2015

Defense of the jury system

Lady Justice and a jury
           Juries are not perfect, but if I were on trial, I would rather have a group of biased strangers, who must reach a unanimous decision (at least in federal court) within the bounds set by a judicial referee, ultimately decide my fate than have one human referee call all the shots.
Juries are not as unpredictable as the news media often make them seem. According to a survey of 30 years of jury studies, “the jury system is healthy.”[1] "Quite a bit of their decision is determined by the case that the lawyers present to them. . . . [W]hat seems like a wild card, in fact, follows rules. The strength of the evidence in the case will give you a good sense about what a jury is going to do."[2]
Juries take the parties’ fates out of the hands of simply one human judge. “The strength of the jury is a diversity in decision making, which makes for a very robust process.”[3] Additionally, juries serve “many purposes and functions that go beyond the finding of facts in any one particular case."[4] For example, they may awaken a deeper sense of civic duty in the individual jurors, awaken them to a better understanding of the law in their jurisdiction, or instill in them respect for the judicial system.
However, the jury system is not without its flaws. Even those who claim the system is “healthy” have their reservations: “It's not clear that juries are the best way to decide to impose the death penalty, because of an inherent flaw in the system. People who oppose the death penalty are not allowed on capital juries.”[5] However, this limitation on jurors is not entirely illogical. Jurors are there to uphold the law and if they do not support the law, then they really have no place as an arbitrator of the law.[6] Moreover, judges have commented that jury bias in itself is not necessarily fatal to justice:
All jurors come to Jury service with certain biases and prejudices . . . Our system envisions these flawed individuals since no juror comes to jury service devoid of these leanings. The history of the jury system shows us that these flawed individuals can set aside these flaws and reach verdicts which are just and fair.[7]

            Others have been more cynical of the jury system:

Not long ago, the right to trial by jury was held to be so "justly dear to the American people," that regardless of "whether guaranteed by the Constitution or provided by statute, it should be jealously guarded by the courts." That is no longer the case.[8]

In doing so, they have claimed “lawyer manipulation” of juries through jury selection can stack the deck in favor of a result “completely inconsistent with the case itself.”[9] This challenge is weak. The adversarial system makes it highly unlikely any one side can stack the deck: the attorneys on the other side are trying to do the exact same thing. Further, even if one could theoretically hand-pick a jury, do you really think anyone can become so competent of human psychology to conclusively know which way any other individual, whom he or she has only known for a matter of moments via a survey of questions, will vote on a matter? Personally, I doubt it. People are difficult to throw in predictable personality boxes.
But critics have not stopped there; they have also complained of juries being “costly and time consuming.”[10] While that may be true, I am okay with paying justice’s price tag.




[1] Susan S. Lang, Judging the jury: Does the American jury system work?, Cornell Chronicle (Sep. 9, 2008), http://www.news.cornell.edu/stories/2008/09/judging-jury-does-american-jury-system-work.
[2] Id. (quoting Valerie Hans, author of American Juries: The Verdict).
[3] Id.
[4] Id.
[5] Id. (citing Hans).
[6] See Waterman v. State, 822 So. 2d 1030, 1033 (Miss. Ct. App. 2002) (“It is presumed that jurors follow the instructions of the court. . . . If the presumption were otherwise, it would mean our jury system was fatally flawed.”).
[7] Wright v. Ctl Distrib., 679 So. 2d 1233, 1234 (Fla. Dist. Ct. App. 2d Dist. 1996) (quoting the lower court trial judge).
[8] Matthew Forbes, Comment, Juries and Jurors: Juries on Trial: Constitutional Right Versus Judicial Burden: An Analysis of Jury Effectiveness and Alternative Methods for Deciding Cases, 48 Okla. L. Rev. 563, 564–65 (1995).
[9] Id.
[10] Id.