May 28, 2024
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First Amendment Reflections

When I was asked to write a weekly column by The Jewish Link, I needed to choose a name that would introduce my column. I chose “Meet Me in the Middle.” I consider myself a centrist who strongly believes in the idea of compromise to help accomplish things.

I also don’t like to be boxed in when it comes to political issues. I tend to be socially liberal but fiscally conservative. I admired politicians like Senators Joseph Lieberman and John McCain, who often made independent decisions and sometimes crossed party lines on various issues.

The recent Supreme Court case about whether a wedding website designer had a First Amendment right not to speak posed a difficult question for me as to where I would stand. I found that there were legitimate arguments to be made by both sides. However, after digesting all the facts in the case, I firmly believe that the Supreme Court made the right decision.

The case in question involved a wedding website designer who was approached by a gay couple to create a web page to celebrate their marriage. The website designer refused the job, arguing that she had a First Amendment right not to speak—and that the state of Colorado could not force her to design a website that celebrated a same-sex wedding.

Contrary to what many people believe, this case was not about whether a website could refuse gay customers. That would be illegal and immoral. In fact, the website designer, Lorie Smith, said that she would “gladly create custom graphics and websites for clients of any sexual orientation” and that she was willing to work with all individuals, regardless of their race, creed or sexual orientation.

In deciding this case, the Supreme Court was not saying that it was OK for a business to refuse to do business with gay customers. In fact, in 2020, Supreme Court justice Neil Gorsuch wrote the majority opinion that helped to protect gay individuals from discriminatory employment practices,

What this case was about was compelled speech. Can the government require a business that provides expressive services to say things that the business owner feels are objectionable?

For example, could the government require an artist to paint a picture of Hitler with the words “A Great World Leader”? Does a speechwriter have to accept a job to write an anti-Jewish diatribe for a right-wing politician?

In my opinion, the answer is a clear and definitive no. The First Amendment is not just about the right to express speech freely; it’s also about the right not to say things that one does not believe.

Justice Gorsuch said it very well: “The opportunity to think for ourselves and to express those thoughts freely is among the most cherished liberties and part of what keeps our Republic strong. And when one does encounter objectionable speech, tolerance, not coercion, is our nation’s answer.”

So why is this not a straight First Amendment case? Why are there folks, including three thoughtful and competent Supreme Court justices, who feel that the government should compel this website designer to accept the job and not be able to refuse to work on First Amendment grounds?

I think it relates to the culture wars (for example, gay rights, abortion, gun control and climate change) that has reared its ugly head in America in recent years. When you support a specific cause, there is a tendency to want to protect your speech as much as possible, while not allowing your opponent to speak—or in this case your opponent’s right not to speak at all.

I remember the famous case in 1977 in Skokie, when a group of Nazis wanted to march in uniform, in a community with several thousand survivors of the Holocaust. The Jewish community was outraged at the thought, and most of its members condemned the planned march loudly. While the event deserved all the condemnation it received, I believe the Nazis still had a constitutional right to speak, as long as they were not inciting violence. But given our community’s desire to protect our own people and our own cause, it was not surprising that much of the Jewish population believed that the Nazis did not have the right to march.

We live in a very polarized country. In certain states, Evangelical Christians would like to censor books and other speech they dislike to protect their children and maintain what they believe is a moral society. At the same time, there are people in other states who would find these opinions discriminatory and hateful. And don’t think this is a partisan issue. There are also left-wing advocates who want to ban Dr. Seuss books and other books that are racially insensitive, while conservative advocates criticize their opinions.

If we are honest with ourselves, we should be able to put aside our own personal beliefs when it comes to the First Amendment and agree that the right to speak—or not to speak—is one that is granted to all Americans, regardless of what they believe.

Justice Gorsuch explained it in this way: “In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”

Thankfully, the Supreme Court recognized that the state does not and should not possess such power.


Michael Feldstein is a contributing editor for the Jewish Link. He owns his own marketing consulting firm, MGF Marketing, and can be reached at [email protected]

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