Do Individual Rights End When They Become Discriminatory?

>> John Yoo: Let's turn to 303 creative real quick. I'm sorry we spent so much time talking about Harvard, but it was all about things you guys are good at, which is getting into college. So how can we not talk about that some more? So let's talk about 303 creative now.

Again, another individual, right? Let me describe the facts really quick, right? This is a case about whether a woman who runs a business designing websites for marriages could refuse to make websites for people who are getting a gay marriage. She claimed it was her right of free speech not to have to make those websites for people she disagrees with.

The state of Colorado said, why is this any different than the laws that we have that say, if you were a store owner, say, you run a hotel, you can't sit there and say, no, Democrats come to my hotel, by the way. That would be so boring. Can you imagine being in a hotel full of Republicans?

Everybody would be asleep by 09:00 p.m. There'd be no drinking, no drugs, no parties. It'd be so boring. But suppose you did that, could someone say, I own a hotel, I own a train, and I only let Republicans on my train, or I own an airline. I am only going to let Democrats on my airline?

The court has said the government has the right to require people who do business to have open access. Hotel owners can't limit who can rent rooms based on ideology or race or religion or gender. United Airlines can't deny people based on their characteristics boarding on their planes. Having just flown United.

It's 50 50 where you're gonna get to your destination, but they can't stop you from getting on. We accept that. There are a series of Supreme Court cases which say, from the civil rights era in 1964 and 1965, that judged Congress passed laws requiring open access for any business doing business in interstate commerce, and the court upheld those.

So Colorado says, why is this different? We're saying that if you're gonna be in business in Colorado, here you're offering a service. Gay, I'm sorry, wedding websites, you can't discriminate on who you sell your services to. Just like, say, someone who runs a store that sells things for weddings, say, wedding gown store.

Can't say, we're gonna pick and choose who's allowed to buy our wedding gowns or wedding tuxedos. So just in the few minutes we have left, somebody want to explain to me how the court resolved this? Notice this is a conflict of individual rights on both sides of here.

On one side you have someone who says it's my right to do business with whoever I want. On the other hand, you have the people Colorado is protecting. Who said I have a right to buy things? I have a right not to be shut out of stores. So someone would describe how the court decided this, or you already had your chance, somebody new.

How about right here? Yeah.

>> Danielle: Hello, my name is Danielle. I'm from.

>> John Yoo: See how good she was? She said what her name was. Take notes over here.

>> Danielle: I'm from the University of Florida. Isn't it because when you're designing a website, that's your freedom of speech to create something.

But if you're providing a good hotel, that you're not really exerting a freedom of speech in that way.

>> John Yoo: Okay, so good. So the court says making the website is speech. And why isn't cooking a meal, speech? Suppose I'm a chef at the hotel, I say I don't wanna make meals for gay weddings because when I make a meal, I am expressing myself.

>> Danielle: I don't know if culinary speech is protected under the First Amendment.

>> John Yoo: Come on, culinary speech? I never heard that before, actually. That's great. I'd much rather eat a good meal than listen to a lot of crazy stuff people say. That's a Scott atlas line I'm sure.

Scott loves fine dining. How did you make that decision? I'm sure the court would agree with you, actually. I'm sure the court would say cooking a meal is not speech. Making a website is speech. How did you decide that one was speech and one wasn't? And is it just because you don't like fine dining?

>> Danielle: I think the thing that you create is depending on what you create and not the person that you give it to. So if you're creating a website saying something that you don't agree, then it's free speech. But if you're creating a meal, I don't know if the meal has inherently political values.

>> John Yoo: Suppose you're a chef and you don't believe in eating animals. So all your food that you cook is vegetarian, does that change your view?

>> Danielle: I think that's legal that you can choose to make only vegan and vegetarian.

>> John Yoo: No, but what if the government wanted to make you cook a certain kind of meal for the wedding of carnivores that you don't want to cook for.

Again, much more fun than vegetarian wedding. I gotta think carnivore wedding would be a lot more fun.

>> Danielle: I'm not really sure.

>> John Yoo: That's good, that's fine. You're not gonna make the supreme court either. Because remember, they never say, I don't know, or I'm not sure. Does someone else want to give it a try?

How about over here? We'll go to the other side of the room. That's gonna be the next case, right? The next case will be okay. You said that about websites. What about everybody else is gonna make the same claim?

>> Ayush: Hi, my name is Ayush.

>> John Yoo: I like the like ones who not only follow rules, but want respect for following rules.= Very good.

>> Ayush: My answer to that point about goods and services would be that making a website is promoting or disseminating information. So if you create a website that can be seen by thousands of people, but if you make a meal that's only gonna be eaten by one, or maybe if you're sharing two people.

Secondly,

>> John Yoo: The number of people matters? What if I showed you, in the opinion that no one ever used this website or sees it except for the wedding party. Actually, do people actually search online to see other people's wedding websites? Actually, they probably do, because they want to see what the dress looks like and the tuxedo looks like.

But does the size of the audience really matter for your free speech, right?

>> Ayush: Not necessarily, but I would supplement that by saying that, let's say the person who created the website, that's their, I guess they use it as a testimony for their services that they provide, and they don't want this to be one of the range of services that they provide.

So that changes their market, even.

>> John Yoo: Yeah, so you're saying people will attribute to you a certain kind of political view based on the way you're selling it or what you're selling. I have to say the court didn't look at it that way, but it's very interesting. Like the court did say this, it's very similar.

They said if the government can make you engage in a creative activity, then it's forcing you to speak. And so that's very similar to your, like, I don't want to have my views attributed to agreement with the state. That is very similar to the courts. Not only do you have the individual right to speak, you have just an important right not to speak.

That's an equal part of the free speech, right? And so the court says, and it's kind of similar, I guess in logic. The court says if you're forced to make a website for a gay wedding, then the government is making you support gay weddings even though you disagree.

All the way in the back there.

>> Shang: Hi, I'm Shang, and I go to Harvard.

>> John Yoo: Well, if you're at Harvard, you don't need to read off your laptop when you ask a question.

>> Shang: I do.

>> John Yoo: No. Admission standards have fallen already with the end of affirmative action.

Close your. Come on. Don't read off your laptop. Be confident.

>> Shang: I was just gonna.

>> John Yoo: I love it, you actually listened.

>> Shang: I was just gonna say this is a nuanced case because there's like.

>> John Yoo: Yes, very hard case actually.

>> Shang: There's a giving end and there's a receiving end, right?

>> John Yoo: Can I pause? It is a hard case. This is the third time the supreme Court has heard this issue. The first two issues were about a baker. And so that's why I was saying about the cook. There's a guy who runs something called masterpiece cake shop, and he didn't wanna make cakes for gay weddings.

Both times he got to the supreme court, and the supreme court kind of kicked his case out as not being appropriate. So it's a really hard issue. The Supreme Court doesn't usually take three cases to get something right.

>> Shang: So I think on the receiving end, it is unconstitutional for someone to be denied of, like, a public service because of their race, of their origin, right?

On the giving end, it is us unconstitutional to force them into basically what you said earlier. But I think bridging these two is a very difficult idea to do. But on the topic of whether for that chef versus the baker.

>> John Yoo: Chef, baker.

>> Shang: Baker, yes. I think both of them are equivalent.

I think being forced to make something versus make a website, they're basically equivalent, right? For the original case, on the receiving end, unconstitutional. But on the giving end, perfectly fine.

>> John Yoo: What about building a house? Suppose you're a house builder and you say, I actually do this. Every time I finish some piece of work at the house, I go, that's a piece of art.

Wow, it's beautiful. That's a joke. I can't do anything with my hands. I hurt myself with hammer anytime I approach a tool. But suppose everybody says that, they say, gosh, everything I do is expressive. Even if I'm fixing a house, I should get the same right that she says, right?

The website designer should get because he says, the government can't make me speak and agree with it. Does that mean everybody now. Does that mean United Airlines now can say no republicans on the airline?

>> Shang: Yeah, so you make a very good point, because I guess, like a free market, you should be able to, I guess, like, sell to whoever you want.

And the probably caveat is that this is based on race.

>> John Yoo: This is not based on race, by the way.

>> Shang: Sorry, this is based on gender sexuality.

>> John Yoo: So why can't United Airlines say, or maybe not united, maybe some small airline that has someone who doesn't like gay marriage?

Who's the owner? No shareholders. And he says, I don't want anybody who agrees with gay marriage on my airline. I guarantee the supreme Court would throw that guy in jail or allow the government to throw that guy in jail, allow him to be sued. But my point is, it's not the message, it's the product that's being made.

And the question is, why is one expressive and gets the right of free speech? And running the airline is not. So someone who hasn't spoken yet. Okay, right up here in front.

>> Carmel: My name is Carmel. I'm from Israel, and I think it depends if you change the product according to the customer, because if I sell plane tickets, it's the same plane ticket that go either to Democrat or Republican.

So I have to sell to everyone who uses the product the same way. But if I have to make a special cake that has, for example, a drawing of the gay couple, then I make a custom cake, and then I have the right to my free speech. But if I sell generic cake, I can not sell it to a gay couple.

>> John Yoo: So, good. So the court doesn't actually explain this. This might be a possible distinction. Maybe if you're buying a commodity off the shelf, unchained, right? Like a seat on an airplane, maybe that's not expressive, that's not speech. But what if it's something you custom make? You hand tailor for that person individually, maybe that's expressive.

I'm not sure why, but it does sound like a principle that would separate the United Airlines from, and the court says this, writers, artists, sounds like students, right? People who are writing things and thinking and talking, those all seem to be expressive. Baking cakes. This is when it starts to get close to the line.

Making food, maybe designing a dress, designing jewelry for a wedding. Do you think that would be expressive? But then maybe things which you sell by the millions, maybe not. Now, one problem about this line is, as those of you who study technology, you realize that companies now can specialize a lot of products to the individual buyer.

Does that mean all of that is going to be considered free speech all of a sudden? And then you can discriminate if ever you feel like, because you can customize your product. So again to talk about the future. That's future cases. So I only have 1 minute left.

So can I just talk really quickly about the student debt case? Because the reason I had assigned it is that's not really an individual liberties case, but the court says it's an individual liberties case. You may remember the school debt case was whether the Biden administration could issue an executive order implementing a statute called the Heroes act, which allowed for the suspension of student loan payments during a national emergency, and use that to essentially modify every student debt contract in the country and say it's all just canceled.

So the court says that goes too far. There's so much money involved that Congress really has to specify in a law whether you're gonna be able to spend or not collect $450 billion. Some estimates run up to $900 billion. This is what's called the major questions doctrine. And it's been part of this rejection of experts that's been going on by the court for a few years now that you asked about.

But the court justifies maintaining this very classic 18th century view of the separation of powers. Congress passes a law, the executive carries them out. All major policies are made by Congress. You know who thought that was crazy? The progressives. You know who thinks that's crazy? Modern, right? Experts in public policy who think that experts in an insulated bureaucracy kept far away from dirty, messy politics should make the technical decisions that govern society.

So idea introduced by Woodrow Wilson. And it is the theory underlying the way our government is organized today. As Scott told you all those stories about COVID and the lockdowns. When I hear those, I hear that as that is the administrative state at work. Experts set a policy, there's no real congressional involvement.

The court justifies trying to go back to the 18th century view based on individual liberty. It doesn't seem like an obvious thing. If you were one who had a lot of money that was borrowed from the government that just got canceled. You might say my individual liberty is just ruined because now I got to pay $150,000 back to the government.

This thing I'll leave you with. The court says, though, that the structural protections of the constitution, the separation of powers, and the difference between the federal and state government are just as important in protecting individual liberty as having a free speech clause or an equal treatment clause that you can go to court and enforce.

Interesting reason why at one point the court says it's because we want the federal government to not be efficient. She was asking about efficiency. Why don't we have more? Why does government do more efficiency? And the court remarkably says we have an individual liberty interest in an inefficient, slow plotting government.

We don't want the government to be too quick and too fast and too powerful. If you talk to people in Europe, this sounds insane. Why would you limit yourself in figuring out the best policy? This is one thing you should think about. Why is it that the court thinks that individual liberty in America is enhanced by weakening government, by making it harder to pass laws and carry them out?

But then the court has a different reason for federalism when it comes to what should be in the hands of the states versus what should be in the hands of the federal government. The court has said it's not about inefficiency, it's about competition. We want the states to compete, and we want the states and the federal government to compete because that will lead to better policies.

And you should ask yourselves as we end how is individual liberty of the kind we're talking about the right to equal treatment, the right to speak freely, the right to remain silent? How is that enhanced or not by having this division of power between the national government and the state government.

So I'm sorry that we ran out of time without being able to fully discuss the third case. I really appreciate your willingness to participate. I had to make fun of no one's appearance or ancestry other than my own, so that's been a good day for me as a teacher.

I hope you enjoyed it, and thanks a lot.