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Comment by AlexB138 | Hacker News Reader

I've been thinking about the concept of censorship by tech companies lately, and I've come to a question I'm not sure the answer to. Ethically, why is society ok with forcing a company to provide a service they find morally reprehensible, for instance the baker who was sued for refusing to make a wedding cake for a gay couple, and at the same time we argue that YouTube has a right to refuse to provide a service to customers because of the content of their videos?

It strikes me as incompatible. It seems we ought to either believe companies are legally required to provide their service to all comers or they're not.

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> It seems we ought to either believe companies are legally required to provide their service to all comers or they're not.

This is a false dichotomy. The law doesn't see "all comers" as equal; specifically, there are what's called "protected classes" in United States civil rights law. Businesses (and individuals while conducting certain kinds of business) are not allowed to discriminate on certain bases (e.g. race, religion, veteran status), but they are allowed to discriminate on others.

The issue where the wedding bakers' case was interesting was that it pit two values against each other - in one sense it was discrimination against a protected class (sexual orientation can be a protected class, depending on state law and interpretation of federal law), and in another it was compelling speech (again, depending on your interpretation of "speech") that had religious implications.

Reddit, on the other hand, is not acting against a protected class by banning e.g. /r/fatpeoplehate, /r/whiterights, or /r/incels. If the managements' ethics or customer backlash prompts them to, they can ban away. In some cases, if speech might be illegal in some ways (e.g. incitement to violence, harassment, or copyright infringement (yes, the fact that that is on the list is a bit ridiculous)) they are legally obligated to remove it.

> The law doesn't see "all comers" as equal

AlexB138 was asking whether are laws are ethical, not whether the laws were legal. Describing the laws in more detail doesn't really resolve the tension.

In other words, why are some classes protected while others aren't? Is there a principle that we should be applying impartially (as in Rawlsian justice)?

"why are some classes protected while others aren't?"

Let's be frank, a lot of the times, the idea of "protected classes" arises from the problems incurred by NOT protecting them. If something will cause problems in society, I think governments will tend to consider that thing with a great deal of care and caution. That said, your point is still well taken. We can see the problems that, for instance, having slavery caused in terms of bloodshed. It's more difficult to see the problems caused by, taking the original example, not making wedding cakes for the LGBTQ community?

So those laws are, at times, UNQUESTIONABLY ethical. I think it would be difficult to argue against the ethical foundation of the idea that in some cases, (again, slavery, Jim Crow, etc), protected class status is pretty good policy. (Certainly preferable to slavery, Jim Crow, etc.) The questions arise more when the stakes don't seem quite as high to the average person. (Taking from AlexB138's comment, the example of wedding cakes for instance.)

Maybe "protected class" is simply an idea that developed via "scope creep" over time? It starts out with everyone, quite rightly, saying "we're going to enshrine the rights of enslaved people into the Constitution so they can never again be assailed or threatened." But it develops over time into, "Well, you did it for blacks or women or whatever. So why not for nazis and pedophiles?" What you need to realize though, is that the average person, myself included, is going to think that is an extremely silly argument. Blacks and women, are not the same as nazis and pedophiles. Even if it's simply for the sake of making your argument, people will have a hard time with that equivalence being drawn.

I'm not saying you're wrong.

But I prefer to think of it as who is a protected class reflects who has the political power to make protected classes.

It's a model that generalizes well, even back to when Jim Crow laws decided who was protected. And I expect it will continue to reflect the changing conditions of future society.

I do think that equivalence is useful for the sake of argument. But it's useful because it forces people to think about why those categories should be treated differently, not because they should be treated the same.

I think a class gets protected when it's powerful enough to have popular support to demand that. The examples of Nazis and peadophiles show that it's not really a fundamental principal - Nazism is an ideology, much like a religion so shouldn't it get the same protection as religions? Peadophilia is a sexuality so shouldn't it be protected just like any other. Maybe it already is?

Well maybe religions should receive the same protections as Nazism, which is to say, not many beyond those which are provided for free expression in general.

Pedophilia is a special case versus other sexualities because pedophilic sex acts are criminal acts. Sure you can argue that all laws ultimately reflect common societal values which do change, but the justification for criminalizing pedophilia has some awfully deep roots -- namely in the idea that minors are incapable of certain types of consent, rendering pedophilia a form of assault.

Back in the day, one of the reasons people didn't like gay men was because they might molest their children. Eventually people realized that not all gays are child molesters, and now that association is gone. But the same misjudgment still exists, only it's been concentrated on an even narrower minority - peadophiles. I would expect the vast majority have never molested a child because it's such a difficult, risky, and cruel thing to do. Your immediate association of attraction to children with abuse of children is common but also a bigoted stereotype. We hardly know anything about peadophiles because the only ones who are known are the criminals. Nobody else can admit to such a preference without being persecuted. I think these are people who are still in need of legal protection but they haven't managed to achieve something like a gay rights movement to persuade people to stop hating them.

I do think describing (American) law in more detail here did help resolve some tension, because it clarified an alternative between absolute tolerance and absolute prejudice.

I don't see why protected classes aren't an impartial standard? Admittedly, the inclusion of a particular class into the set of protected classes is perhaps a bit arbitrary, but it has the advantage of being simple while also addressing the common and egregious cases of injustice fairly well.

I fail to see the connection to Rawls, aside from an interest in "impartiality".

> I don't see why protected classes aren't an impartial standard? Admittedly, the inclusion of a particular class into the set of protected classes is perhaps a bit arbitrary, but it has the advantage of being simple while also addressing the common and egregious cases of injustice fairly well.

You're begging the question there. Unless there's an impartial standard for what constitutes a protected class, they're no more impartial than saying that people called Dave are allowed to break the law.

> In other words, why are some classes protected while others aren't?

Protected classes tend to be things about themselves that people either can't change (race, nationality, gender, age, sexual orientation, family status, disability) or that it would be unconstitutional to force them to change (religion) and that people have been discriminated against on the basis of in the past.

I often wonder why religion is protectes, whereas political opinion isn’t... after all, both are opinions, often concerning the same subjects, and the difference is mainly nominal.

Would James Damore be spared if he claimed not that he thinks that women are whatever, but that he believes so?!

I think the answer here is that religion was much more fundamental to American identities in 1776 than it is today. In US history and still today in other countries there are lots of examples of people being violently persecuted for believing in a certain religion, much fewer for holding a political opinion.

You could make an argument that in the US people of different religions get along better than they used to and as a result religion no longer requires the Constitutional protections it currently enjoys. I would respond that as a society we probably have bigger fish to fry.

At that point in history, two wars fought over religion, the 30 Year's War and the French Wars of Religion were the first and third deadliest wars in European history (the Napoleonic Wars were second). They hardly could have avoided having their political thinking shaped by that.

Whether a god exists isn't something one can change either.

Sure, we can force people to at least act like they believe in a god (or not). But is it tyrannical to do so? Plausibly, yes.

That's only roughly true. Many missing classes exist Eg hair color (gingers are often mistreated), beauty (ugly people are discriminated against in hiring), height, intelligence.

Hair color is changeable. And society hasn't felt that ginger mistreatment has yet become an issue to tackle. There's no major organization lobbying for the rights of redheads (AFAIK). Maybe it's a problem but it sounds like it's isolated and not systemic - apologies if I'm minimizing the suffering of someone who's redheaded and has suffered.

Physical fitness, good hygiene, and dressing well can take most people within a standard deviation of being considered attractive. And in any case "beauty" is far more subjective than race or national origin.

Height is a trickier one but outside of discrimination against people with dwarfism (disability) I'm not sure there's been a pervasive, ongoing, systemic discrimination against tall people or short people. Correct me if I'm wrong about that. I've read occasional research studies about tall people getting more leadership jobs, but I don't know how rigorous those are.

Intelligence - hiring is about capability to do the job, not "intelligence" whatever that means. Employers can use whatever means they want to judge ability with the following conditions:

"...it is unlawful to use a test or selection procedure that creates adverse impact, unless justified. Adverse impact occurs when there is a substantially different rate of selection in hiring, promotion, or other employment decisions that work to the disadvantage of members of a race, sex, or ethnic group."

If an adverse impact occurs the employer can only continue to use that selection procedure

"...if the procedure is job-related and valid for selecting better workers, and there is no equally effective procedure available that has less adverse impact."[1]

That second one is (I believe) what makes it legal to put out casting notices asking for actors of a specific sex, age range, or sometimes race. But if an employer can't show that an IQ or aptitude test is job-related, and the test is found to have a disproportionate adverse impact, it can't be used.

1. https://www.onetcenter.org/dl_files/empTestAsse.pdf

I think understanding the logic of the law itself makes clear the ethical considerations in play when it was drafted. The general principle is, indeed, to allow businesses to make decisions about who they want to serve and how; but in view of the injustice and negative social effects springing from certain types of discrimination (particularly over race, gender, religion, and sexual orientation) the state decided to protect certain classes of people and expression from private businesses' power to decide whether to serve them.

minorities are protected because a simple majority suffices to oppress them. I think the abstract solution is probably more along the lines of exchanging simple majorities for near unanimous agreements.

Sure when certain classes aren’t protected, other classes roadhaul them and keep them from integrating into schools and neighborhoods? From the end of slavery through Jim Crow, until the civil rights movement there was a big experiment of not protecting anyone, and it failed. Even after you got explicit redlining, and now redlining through other means.

It’s not as though there’s a lack of data for outcomes here, and it’s weighed against slippery slope fallacies and “what if’s.”

>This is a false dichotomy.

That's not right. What you said about US law and protected classes is correct, but just because something is made law does not mean people should believe it or not. Gay marriage was illegal: people questioned that law and now it is being changed in many places. The user you replied to is not necessarily wrong nor making false statements; they just disagree with the status quo you described.

>The law doesn't see "all comers" as equal; specifically, there are what's called "protected classes" in United States civil rights law.

This is the real false dichotomy, and why civil rights law as written is total garbage. Creating "protected groups", which by definition are artificially defined and socially polarizing gives certain people more rights than others. This is incredibly counterproductive and entirely wrongheaded. Those who argue that the existance of "protected classes" in law are a rationale for discrimination, rather than defending the logic and morality of "protected classes" themselves are missing the point.

Virtually all reasonable, fair-minded people want a society where everyone is equal and everyone enjoys the same civil liberties. Its irrelevant that various Civil Rights Acts were intended to protect "vulnerable" groups - intentions never matter. What matters are the actual, tangible results of the law. Ignoring this fact and pretending that intentions are what matters is what leads us to where we are today. The truth is that it wouldn't be difficult to word a Civil Rights Act that used neutral language to prevent the violation of anyone's civil rights, by any party, for any reason. This has already been done, most recently in Iceland. The people of Iceland were concerned about the continuing wage gap between men and woman, and so they passed a law that mandated equal pay for all people working the same jobs. They didn't slice and dice the population into artificially created catagories, or specify anything about men, women, "theys", or 25 different genders and races. They simply said that a company has to pay the same salary for the same job, no matter who the person was.

At the end of the day, we need to move to a place where we all view each other as equals (though not the same). Laws that artificially divide us and codify those divisions into law will just continue to ensure that we never move toward a society where this is the case.

   Virtually all reasonable, fair-minded people 
   want a society where everyone is equal

I have never met a reasonable, fair-minded person who wanted a society where everyone is equal. Let me quote [1]:

"[W]ith the possible exception of Barbeuf (1796), no prominent author or movement has demanded strict equality. Since egalitarianism has come to be widely associated with the demand for economic equality, and this in turn with communistic or socialistic ideas, it is important to stress that neither communism nor socialism [...] calls for absolute economic equality."

The most famous 20th century defender of equality has been Pol Pot who justified his crimes by his wish to create the "perfectly equal state".

I refer once again to the article [1] for an overview of the problems with making the concept of equality precise, beyond populism. I suggest reading equality of a narrative device, intended for drastic simplification that appeals to the masses. Comparable narrative simplifications are for example concepts like god, last judgement, Karma etc in the religions. They are extreme simplifications of complex social processes.

[1] https://plato.stanford.edu/entries/equality/

Equal in the eyes of the law - possessing the same legal rights and civil liberties. This is literally the opposite of a state seeking "equal outcomes".

I believe a lot of this disconnect is between people who view equality as equality of opportunity and those who believe that equality is actually the equality of outcome.

I stronly recommend the article Equality [1] in the Stanford Encyclopedia of Philosophy. It's a great overview article that maps out the different approaches to equality, how they are incompatible with each other, and gives great links for further reading.

It's not long, maybe 15 minutes, and worth pondering deeply, and repeatedly.

[1] https://plato.stanford.edu/entries/equality/

This dichotomy gets brought up a lot, but if you start thinking about the details here, the distinction isn't as clear as people make out.

If everyone were given equal opportunity to achieve good outcomes for themselves, the only way we could end up with inequality of outcomes is if people choose to have worse outcomes than others. But why would anyone ever choose bad outcomes?

People try to explain this by saying some people are "lazy" or "impulsive" and thus make suboptimal choices, but does this really make sense? If a significant portion of society is consistently making suboptimal choices, are there societal changes we could make to convince more people to make better choices?

If we think there are societal changes we could make that lead more people to make better choices, then can we really say those people had "equal opportunity" to make those choices before the change?

And if we think there aren't any societal changes we could make that lead people to better choices, then what we are saying is that there is inevitably some portion of people who will not achieve good outcomes within our system. And if that's true, is it really a good system for humanity as it exists?

> But why would anyone ever choose bad outcomes?

Because what they want doesn't correlate with what's in demand at that point in time?

I mean, someone might want to study English Literature at degree level, then find a job based on those skills. However, if those skills weren't in demand at that point (because everyone wanted people with STEM degrees or programmers or what not), then their outcome would likely be worse than someone who studied computer science.

Did both of these people have equal opportunities? Sure, they could have both gone into one field or another (assuming a theoretical situation where their intelligence was roughly equal and the degrees cost about the same). But they didn't, and their outcomes weren't equal. That's not necessarily a bad thing, and one choice wasn't necessarily 'suboptimal' either.

And how about a few others?

Someone going to one city over another is a choice, and the consequences could be very different based on that choice. That doesn't mean there necesarily wasn't equality of opportunity.

Same for things like what job you choose (assuming they're 'equal' on a technical level), who your friends are, what hobbies you have, etc. You can probably think of thousands of examples where people are making choices that lead to inequal outcomes, simply because either the market demand is different, attitudes are different or random factors in the world are different between them.

Choices don't necessarily have to be 'suboptimal' to have different outcomes.

>But they didn't, and their outcomes weren't equal. That's not necessarily a bad thing, and one choice wasn't necessarily 'suboptimal' either.

It's easy to say their unequal outcomes are "not necessarily a bad thing" when you're a STEM graduate living in San Francisco on a $200k, not quite so reassuring when you're an English Lit graduate struggling to make a living as a barista.

And when you look at that massive difference in outcomes and say "well you chose skills that aren't in demand" then what you are saying is "you made the wrong choice if you wanted a good life".

EDIT: Or alternatively, to finish the analogy, you're saying "some people just inevitably want to study English Lit even though our society doesn't value it, guess it sucks to be them!".

So what's the alternative? The government sets wages across all industries to be exactly the same? That doesn't feel too meritocratic...

But hey, if you need another few, what if:

You have two jobs to choose from, both make you happy and both pay the same. The outcome won't be identical in both cases, since you'll meet different people, work in a different location and do different work.

Or how about the obvious extreme between a job that pays well and nothing? Let's assume everything ends up on basic income and that works out. Fair enough.

But now assume one of those people wants to become an entrepreneur and sets up a startup that ends up becoming a billion dollar corporation while the other one sits at home and watches Netflix all day.

Their opportunities may be the same, but the outcomes won't be. Is that a bad thing? I doubt many people would say it is, especially given how both have enough to live on and both are enjoying their life doing what they want to do.

Or heck, how about another example? Imagine two people are looking for a romantic partner at the same time. They may have the same opportunities (in terms of access to the other gender, wealth, location, etc) but simply by genetics (aka one potentially being more attractive than the other) or interests (more attractive people from one gender might have one interest and not another) they won't have equal outcomes.

You will never get 'equality of outcome', simply because a system that aims for that would be ridiculously unfair, completely non market based and likely verging on a dystopia.

Firstly, I'm talking about big ticket economic injustice here. I'm not interested in small detail differences, and I'm definitely not talking about relationships (and honestly I find it kind distasteful to talk about them in such a commodified way).

My argument is not equality of outcome is better, but that the dichotomy is not that coherent. If people truly have equal opportunity to choose good outcomes they will do so.

If they do not, they are either being influenced by society towards bad outcomes, in which case we should consider changing society, or they are influenced by innate aspects of themselves towards bad outcomes, in which case our society is structured in a way that privileges certain innate traits.

>That doesn't feel too meritocratic...

Well honestly, I'm not as sold on the idea of "meritocracy" as most people here. I think the idea that some people "deserve" worse lives than others is pretty distasteful.

When people say different outcomes are necessary to motivate people and produce better outcomes overall, I can at least understand that argument. I don't personally agree: I think in reality most people are far more motivated by a sense of purpose and achievement than material wealth (beyond essentials). But the argument does at least have the goal of producing the best outcomes.

But when people start to elevate this inequality to morality, and say that "inequality is good" and that some people "deserve" worse lives because they have less "merit", I think that framing discards the goal of achieving the best outcomes, and I find that misguided and self-serving at best, and evil at worst.

>to all comers

Isn't this a category error?

The gay couple's cake is a category of _people_ being refused service.[1]

The gun assembly video is a category of _topic_ being censored.

You can can discriminate against topics and simultaneously not discriminate against people. As an example of juxtapositions... a "gun rights owner" can upload a video of "iphone disassembly" and the video will not be deleted. On the other hand, a gun-control advocate who wants to ban gun ownership can show a video about "gun assembly" and the video will be removed. It's the topic not the people. Businesses have exercised editorial control over topics for hundreds of years. Same as The New York Times or website forums where users "upload" words such as HN. If you submit a topic to HN that goes against the moderator's rules, it will be flagged and deleted. It doesn't matter if the HN user is gay or gun-control or any protected group.

[1] https://aclu-co.org/court-rules-bakery-illegally-discriminat...

> The gay couple's cake is a category of _people_ being refused service.

We aren't denying service to gun users, just restricting certain kinds of content. Gun users can make videos on the evils of gun ownership just like the grabbers can, no discrimination against a category of people here!

Just like gay people can order cakes for heterosexual marriages, exactly the same as straight people can.

Just like gay people can order cakes for heterosexual marriages, exactly the same as straight people can.

If the gay couple goes in to the baker's to buy a standard cake, complete with heterosexual couple on top, I'm going to guess the dude would ask them questions to make sure they weren't buying it for themselves, either because one might have worn a dress, didn't want figurines on their cake, or were going to replace the figurine topper with one more fitting to their relationship.

A straight person wouldn't have this sort of questioning.

The baker did not refuse to service the individuals in question. He told them that he's not willing to bake a cake that, in his view, promotes homosexuality because it goes against his religious views, but he would be willing to bake them anything else or sell them anything within the shop. He was not refusing service to them, but refusing to allow that one specific 'topic'. And he also would have refused service if, for instance, a heterosexual couple wanted him to bake a cake that, in his view, promoted homosexuality. This is a regular part of his practice. For instance he also refuses to bake Halloween related goods, again believing that it goes against his faith.

Another issue that's not considered in this case is that another [gay owned] bakery, in extremely close vicinity to the 'no gay cakes' bakery, was asked to bake in the shape of a bible with a quote stating that homosexuality was a sin. They refused to do so, and this decision was upheld [locally]. That is extremely inconsistent and evidence of bias and prejudice in the local enforcement of law.

I think most people don't realize that this case is actually pending judgement from the US Supreme Court. And the implications are enormous. If they judge against him, it's going to open the door to all sorts of things, such as for instance, the behavior of online sites. It would also open the door to trolling in real life like the aforementioned 'bible cake' or even, for instance, going into an Islamic owned shop and forcing them to blaspheme. Of course if the court rules in favor of him then it's also going to open the door to discrimination in the same form as a child might tease another of, 'not touching you, not touching you!' as they hover their finger 1 cm away from a person. I'm actually somewhat surprised they chose to hear it because of this. There is no good judgement, but now they're going to have to decide one way or the other - setting national precedent.

The Bible cake story is new to me, so I had to Google it. (https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake....) Apparently there is a small but critical nuance between the stories. Per this article, in the Bible quote incident, the owner was willing to sell the cake, and do everything except putting a quote on it -- even offering the icing to write those words if they wanted. In the gay cake incident, the owner was willing to sell the couple anything else in the store -- but the cake itself was not allowed to be bought.

"Protected classes" are one of the few government mandated restrictions for the freedom of businesses to refuse service (something which I have some mixed feelings on, but given some of the climate that happened without these protections, I find them completely understandable). It's possible that the judgement will end up reading very narrowly -- for instance, if you use the above reasoning, it would be legal to discriminate on the messaging but illegal to discriminate on the product. (In other words, if the baker in the homosexual couple case didn't sell a homosexual marriage themed case, but would sell a generic cake and let the homosexual couple decorate it in any way they want, that would have been legal under this particular interpretation.) This is just an example, it's not the only way a narrow reading could go down, but there are probably more solutions out there then all one way vs. another.

The baker has stated in front of the supreme court that he would have been more than happy to sell them an off the-shelf-cake if that was requested, as opposed to him creating a wedding cake specifically for their wedding. One of the big problems here is that the interaction went from 0 to extremely hostile instantly. The couple asked about a wedding cake. The baker stated he does not create cakes for same sex marriages, but offered to sell them anything else or create custom goodies for a shower, birthday, or any other event. This was immediately met with expletives and rude gestures, and that was the end of their person to person interaction. That was followed by the couple presumably taking to social media the shop was bombarded with hateful calls and messages including a death threat.

It might be that the baker is lying, but this isn't even a he-said, she-said. There was not even the slightest effort made at compromise.

Interesting... customer interactions aside (the difficulty of the customer is probably irrelevant to the case), it didn't come off that way from the New York Times article, but it did in the official opinion from the Colorado Court of Appeals (https://www.aclu.org/legal-document/craig-v-masterpiece-opin...). Might not change the scope for a narrow ruling, of course, but depending on the "scope" this might affect the outcome.

It's worth noting that religion per se is not a protected class in Colorado's discrimination laws. Sexual orientation is. (https://law.justia.com/codes/colorado/2016/title-24/principa...)

Even if religion was a protected class, one problem I see here is that it really isn't "Christianity" as a whole in the Bible verse case that the owner found distasteful per se. Rather, it's the opinion expressed by the Biblical verse chosen. Christianity encompasses a wide range of opinions, after all. There are some Christians who downplay the anti-homosexual verses in the Bible (or have different interpretations to them, eg, they believe there is some degree of mis-translation). If the baker had refused to make a cake with a more universal symbol representing Christianity as a generic concept (say a cross), I think there's a stronger case that this is religious discrimination.

But as it is, it's a message. Compare this to if the reference was non-Biblical but similar in intent. Say, the customer wanted to write a message like "ALL FAGGOTS WILL BURN IN HELL" on the cake (weird message for a cake, but so is an anti-homosexual Bible verse IMHO :) ). The owner certainly has the right to refuse here because they find the message distasteful. Is there much of a difference? Whereas, in the other case, it involved a class of people that the owner found distasteful, yet was protected by the law above.

I will say that it is indeed these sort of cases that do make "protection laws" a bit troublesome... such codes force the baker to go against his or her own personal beliefs. If it's just one cake baker losing business over a moral code like this, it's probably better to err on the side of not worrying about it. The trouble is, we're well aware of the results that happened when a minority group isn't protected, and suppression of the minority group is systematic and widespread. In other words, from my vantage point, the alternative appears to be worse.

In the Colorado laws, "creed" refers primarily to religion and distinguishes between what you're referring to here with a religion at large, and a person's belief system under that religion, which is their creed. In either case, religion itself is also a protected class under federal law. Though this may be tangential. The main defense in this case is one of freedom of speech.

If you're interested in this there an immense number of really interesting filings, particularly 'friend of the court' filings on this case. You can read them all here: http://www.scotusblog.com/case-files/cases/masterpiece-cakes... They are loaded with interesting anecdotes of the implications of a ruling either way, along with precedent. For instance in one famous case an individual in New Hampshire did not want the state motto, live free or die, on their license plate which was a part of the state standardized and controlled design. The courts ruled that free speech protects the freedom to say things as much as the right to not be compelled to say things. The reason that's relevant is that no reasonable person could think that it was the individual themselves saying "live free or die" but nonetheless it was still seen as compelled speech as the individual was being forced by the state to promote a message they disagreed with.

So then the natural issue there is that the cake itself is not directly stating anything, again like your rationale on the bible cake verses. But there is court precedent declaring everything from photographs to engravings to stained glass windows to... topless dancing as protected speech under the first amendment. It seems likely that wedding cakes would follow in the same vein. When people spend hundreds of dollars on these cakes, they're implicitly spending most of their money not on the cake, but on the artistic expression of its creator.

> That is extremely inconsistent and evidence of bias and prejudice in the local enforcement of law.

That is not inconsistent, as one is denying someone based on what they are, and the other is denying someone based on harassment. The gay couple didn't ask the baker to write on the cake that heterosexuality was immoral. There's an obvious difference between affirming the culture of the customer, and antagonistically denying the culture of the producer.

And I do think think that the baker's refusal was about what they are, since the conditions to bake the cake required that it didn't acknowledge what they are. It's like saying, "I will bake a cake for a black person, but only if it doesn't reference black culture in any way."

The religious baker was being asked to engage in an action that's deeply disparaging of his beliefs and values.

The gay baker was being asked to engage in an action that's deeply disparaging of his beliefs and values.

This is the problem with social laws. It's easy to see things from our own perspectives, without considering that what 'we' consider perfectly reasonable can be perfectly offensive to another individual. One of the most crucial issues in forcing people to engage in behavior that they find offensive is that it goes both ways.

I believe the standard retort to this is that religion is a choice, whereas sexual orientation is not.

Which is understandable as far as it goes, except it is the sole exception to the accepted blank slate belief of sociologists everywhere. We carve out a very visible exception in this domain.

Zeitgeist: Our behaviors are all socialized into us, with the sole exception of sexual orientation. Contrast with the perspective that one's religion is merely a choice, such that after being socialized into a belief system for one's most formative eighteen years, one can simply toss it away thereafter.

Absolutely, but the issue here is that religion is a protected class under the law. The key point here is that a 'creator' generally cannot be forced to use their talents to create something that they do not want to. However can people 'override' this and force people to create things they normally would not, if the thing being requested falls under the domain of a protected class? For instance 'satanists' are now requesting the same baker create cakes celebrating the birth of Lucifer with upside down crosses and associated imagery, arguing that it's an expression of their religion, implicitly with threats to sue if the baker doesn't abide.

> The gay couple's cake is a category of _people_ being refused service. The gun assembly video is a category of _topic_ being censored.

So should it be OK for a bakery to refuse to bake wedding cakes for gay couples, as long as it's willing to bake other kinds of products for gay people? In other words, it's refusing only to provide service to the specific topic of gay marriage, not gay people generally; gay people can still use the rest of the bakery's services, just not services involving gay weddings specifically.

E.g., a gay person can order a cake for another straight person's wedding, or can order any other product. As a thought experiment, this should suffice to categorize the bakery's action as a "topic" being refused service (gay marriage) rather than category of people.

I have to agree with the original comment that it does seem spurious that companies in some cases are allowed to choose their customers, and are not in others. I understand that laws have been passed to create these distinctions, but I don't see a solid ethical foundation underlying which distinctions should to be protected or not.

At some point it feels to me like the services offered by these companies will become so integral to the fabric of society that they'll become "public goods" of a sort. Would we tolerate it if the phone company refused service to gun's rights advocates, or if airlines or bus companies refused them transportation? In legal fact, perhaps they could, but in reality they do not - however, Internet firms like Google and Facebook ban large swaths of content off their platforms.

As the Internet becomes vital to our lives and interpersonal communication, it's beginning to feel unfair that private companies have such tremendous and capricious control over these pseudo-public spaces.

> Would we tolerate it if the phone company refused service to gun's rights advocates, or if airlines or bus companies refused them transportation? In legal fact, perhaps they could, but in reality they do not - however, Internet firms like Google and Facebook ban large swaths of content off their platforms.

That's an interesting question, and it's not hypothetical(assuming you consider financial services as part of your "public goods" argument) - https://www.governor.ny.gov/news/governor-cuomo-directs-depa...

Not a lawyer. I’m guess I’m just really confused because I’m reading all of these comments and still not seeing a distinction.

YouTube can ban all homosexual videos from its platform so long as it doesn’t ban unrelated videos from homosexual people? That doesn’t sound right to me but it’s what I’m interpreting from your post.

Further are you saying the baker could refuse to sell them the cake they wanted because it had some gay theme ( two girl names I think) so long as they offered to sell them a Superman cake at the same time?

> YouTube can ban all homosexual videos from its platform so long as it doesn’t ban unrelated videos from homosexual people?

Yes (at least in states where sexual orientation is a protected class).

> Further are you saying the baker could refuse to sell them the cake they wanted because it had some gay theme ( two girl names I think) so long as they offered to sell them a Superman cake at the same time?

AFAIK this is not a settled issue.

I imagine a reasonable test might boil down to "If you have a policy that you never put names on cakes then you can refuse to write 'Jane and Jill'. But if you will write 'Jack and Jill' when asked, then you also need to write 'Jane and Jill' when asked."

In other words, the store may not have a policy that is functionally indistinguishable from refusing service to a protected class.

Notice that Google banning videos about homosexuality would definitely not be equivalent to banning homosexuals from using its public service.

This gets hairy; e.g., religion is a protected class. Could a Satanist cult compel a cake-making business owner to write down a disavowal of his God (in frosting)? Evaluating hairy edge-cases on a case-by-case basis are why human judges exist.

IANAL.

Every time I see that IANAL acronym, it's like this: iMac, iOS, iPhone, iAnal

TMI?

> It seems we ought to either believe companies are legally required to provide their service to all comers or they're not.

Both of those positions are completely unworkable.

If businesses may always select which people to serve, you can end up with de facto racial segregation. We know what that looks like. The illegality of this sort of discrimination by businesses is a direct outgrowth of that historical moment.

If businesses may never select which people to serve, you'll end up with protesters clogging everything from the meat aisle at Wal-Mart to the local church's bible group.

So we end up constantly revisiting how to resolve this fundamental tension between the owner's right to free speech and the customer's right to equal protection.

The line today, as I understand it, is that businesses may discriminate against people for what they say or believe, but not for explicitly enumerated aspects of their person (such as race, sex, age, and now(?) sexual orientation).

Imagine it’s the late 16th century. And one company exclusively owned the rights to the printing press. Now imagine that this company was a powerful company involved in all kinds of sectors of public interest. Would you still question the wisdom of ensuring this company was censoring according to the standards the public and not simply in the business interests of the company?

Law, and especially common law, is not a neat and logical system. It's more an attempt to approximate the idea of justice (as in being fair and just), as people see it at particular time. So it's built out if patches, special cases, and other adaptations to reality at hand.

This is likely a rather reasonable system, though: it imitates the way the biological life adapts to the conditions it cannot predict, mostly without breaking previous adaptations.

It does make the system complicated and, at tines, contradictory.

I think it has to do with the special ability of a media companies and their ability to agenda set

https://en.wikipedia.org/wiki/Agenda-setting_theory

The more I think about this question, the more it is stumping me. I wouldn't call creators 'customers' but I think the point still stands. Curious to hear peoples thoughts

It's interesting that you frame the scenarios like this, because as someone who works at a tech company I dislike content takedowns, and the way I see it tech companies are being forced, by journalists, advertisers and the threat of regulatory action, to take down content. So I don't really see these two scenarios as significantly different, but rather popular pressure overriding the preferences of businesses. On one hand the pressure was governmental and on the other it was not explicitly so, but that has more to do with the public's tools than their intentions.

It might be helpful to highlight the following distinction:

In the case of putting a message on a cake, an individual human has to effectively perform a deliberate action which may seem to express an opinion (potentially one which they do not share), whereas in the case of a big tech company, the default state is for their software to allow any customer to express any opinion with their own comment, and it is only the deliberate act of censorship/moderation that involves the conscious decision of an employee.

If a baker had an "automatic cake decorating machine", but they checked what messages you had put on your cake before allowing you to leave their bakery with the result, then that would be a closer comparison.

>for instance the baker who was sued for refusing to make a wedding cake for a gay couple

Anyone can be sued for any reason. What matters is whether the judge found the baker guilty.

It may be incompatible, but the voting public wants to have their cake and eat it too.

But this isn't asking them not to censor, it's just asking them to be transparent who and what they do censor.

We should be applying far stricter standards to Google and Facebook - in many ways they have effective monopolies in a way that a baker doesn't.

I think the simplest solution is the correct one: because politics. Consider how many ideologues flip-flop over similar situations when "their" side is the victim. For example, Trump and Cambridge Analytics vs. Obama's campaign and Facebook. At the end of the day, it's people making these decisions and movements, and most people are not well-trained in ethics.

Because the bakers are discriminating against certain people doing the same behaviors as other people, but content hosts are discriminating against certain content, regardless of who does it.

We don't allow Google to censor homosexual content, and we allow bakers to ban gun cakes.

I think its a useless difference. The baker could say hey doesnt want to bake cakes for "a type of wedding", not against "gay people that wed". The declared intent is irrelevant.

> The baker could say hey doesnt want to bake cakes for "a type of wedding", not against "gay people that wed". The declared intent is irrelevant.

The courts are endowed with common sense; e.g., you can find many examples of courts rejecting various attempts at "literally equivalent to <insert protected class> but I never said <insert protected class!>".

Yes, but then you end up with a mind-reading exercise, where someone's opinion of your intent matters more than what you actually did or did not do. Your example is obvious enough, sure, but you will surely hit some where many reasonable people strongly disagree after enough such cases.

This is bad because we're all biased in various ways and knowing about that bias actually tends to make it worse among the people who don't realize that simply knowing your biases doesn't make you immune to them, leading them to overconfidence.

> Yes, but then you end up with a mind-reading exercise, where someone's opinion of your intent matters more than what you actually did or did not do

A sound, centuries-old concept that pre-dates the modern justice system.

(Also, in most cases, you're wrong. Intent does not matter more. Which is why actions, not opinions, constitute the illegal activity. You can hate gay people as long as you make them their cakes. You can freely express Nazi ideologies as long as you don't plow your car into people. You can hate your wife as long as you don't murder her. You can hate your boss as long as you don't burn down the office building. Etc.)

> but you will surely hit some where many reasonable people strongly disagree after enough such cases.

Certainly. SCOTUS often passes down tests, but they can be very open-ended and sometimes even depend upon cultural context (e.g., Tinker). Also, those tests are sometimes updated as new cases are presented and the boundaries drawn by the previous test are judged insufficient (again, e.g., Tinker).

> This is bad because we're all biased in various ways and knowing about that bias actually tends to make it worse among the people who don't realize that simply knowing your biases doesn't make you immune to them, leading them to overconfidence.

How so? Judges understand that the law is full of grey area. When controversial issues of constitutional law come up, they often spend a great time deliberating. This is one reason why it's imperative to have a high-quality and independent judiciary. Our judges are not perfect, and some are even quite fallible. But this sort of self-assuredness in the outcome of dicey constitutional law cases is far more common from people off the bench than people on the bench.

Even on the problem at hand, it's pretty obvious that both of the "no grey area" positions are ridiculously untenable.

For the general case, what's your proposed solution? A system of laws with no grey area? I conjecture that this problem is even harder than AI-strong. Way harder.

We're just barely learning how to write bug-free device drivers in a formal language. What makes you so confident that we could solve all the problems of politics and philosophy, in a completely unambiguous way, in an informal language?

> A sound, centuries-old concept that pre-dates the modern justice system.

Kinda. Yes, intent is an element of some crimes, but they also look for indicators of it in your actions if you go back to the better common law rules.

Take a common definition of 'shoplifting': it requires concealment & removal. That is, you have to both hide the thing and take it away. It's the concealment of the object that shows you have some bad intent.

The problem with an intent standard here is that almost anything can incidentally affect one race more than another. Say I have a job like 'firefighter' and I set certain physical requirements. I've just accidentally discriminated in favor of black males, despite lacking intent to do that. Or say that I have a test to see how well people can do the job and the test consists of mental tasks. That discriminates in favor of Asians and it gets worse the pickier I get despite there being almost no difference between average people.

There are reasonable people who argue both for and against these standards because of the discriminatory effects they have vs. the fact that they may strongly relate to ability to do the job.

I'd be curious to see a study linking attitudes on these to one's self-interest bias. I have my suspicions about how that works, but I don't trust my intuition not to be biased.

Hardly. A baker is free to say they won’t bake a giant swastika cake, or a massive ejaculating penis cake. They’re allowed to pick and choose what they’ll bake, but not who they bake for. If a straight couple wants an ejaculating penis cake, and that offends the baker they don’t have to make it, but they can’t ban the straight couple for being straight. If a guy couple wants a typical wedding cake saying, “Jane and Jill 4 Ever” on it, that’s not something they can reasonably refuse. If Jane and Jill want a swastika cake, they’re shit out of luck.

Wasn’t the case about a gay wedding cake? That makes disentangling the what and for whom very difficult.

It was a normal cake. The "for whom" was the only differentiating factor.

There's been more than one case, actually, so it really depends which case you're talking about.

Would "A. Baker" refuse to bake a non-homosexual wedding cake for a homosexual wedding (whatever that is)?

It wasn’t an unusual or offensive cake, so it really doesn’t. It’s not as though the couple asked for a cake, but “make it extra gay!”

If you refuse service to a neo-nazi, can you get sued and fined?

> can you get sued and fined?

Generally not.

I found this blog post pretty helpful: https://takecareblog.com/blog/neo-nazis-wedding-cakes-and-co...

(Nit: anyone can be sued/fined for anything. The question is whether the plaintiff/gov't will win the resulting lawsuit.)

We definitely do allow Google to censor homosexual content. LGBTQ videos and any video coming anywhere near issues that affect those communities were among the very first videos to be censored. Prior to the fictional 'adpocalypse', YouTube wasn't so heavy handed with it, but their Blogger platform always has been.

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