Unfortunate: ACLU On The Wrong Side Of A Free Speech Case

from the really-now? dept

Let me start this off by making two things clear, even though I don't think it should matter for this story. First, I strongly support the rights of gays and lesbians to marry if they choose to. In fact, I find it both depressing and shameful that this is even a debate today or that people have had to fight to change laws to make this possible. And I look forward to the time in the (hopefully) not too distant future, where the world looks back on the fights against allowing such a thing and recognizes it for what it is: a dark day in our history, in which governments were trying to tell people who they can and cannot love.

Second: I'm a big, big supporter of the ACLU and I think they (normally) do amazing work protecting our civil liberties -- even in situations where others might shy away. I know many people who work there, and consider them friends. The reputation of the ACLU in taking on cases in which they support individuals or groups with abhorrent positions is a very good thing -- such as the very famous case of the ACLU defending the rights of neo-Nazis to march in Skokie, Illinois. It is possible to defend the free speech rights of those whose views you find morally abhorrent. And the ACLU has a pretty good track record of doing that.

So I'm left confused by the news that the ACLU is on what I believe is the very wrong side of a case involving a photographer who has a moral objection to gay marriage, and has refused to photograph their weddings. Personally, I think that photographer Elaine Huguenin is on the wrong side of history with her views on gay marriage. But I have tremendous problems with the idea that a New Mexico law against discriminating against gays and lesbians automatically requires her to photograph their weddings and to then "tell their story." Huguenin argues that forcing her to tell their story when she doesn't want to do so violates her First Amendment rights against compelled speech.

Of course, I also think that there's a First Amendment right for everyone else to explain why they shouldn't want to hire Huguenin in the first place for holding such views. But it's disappointing to see the ACLU on the other side, and actually willing to argue that the First Amendment is somehow "less important" than making Huguenin photograph a wedding she doesn't want to photograph. That's what the ACLU's Louise Melling told the NY Times:

There are constitutional values on both sides of the case: the couple’s right to equal treatment and Ms. Huguenin’s right to free speech. I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

Except, as Reason rightly points out, that's not true. there aren't Constitutional issues on both sides.

... the Constitution guarantees equal treatment by the government, not by private individuals or organizations. The 14th Amendment cannot justify requiring photographers to treat all couples equally any more than the First Amendment can justify requiring publishers to treat all authors equally. By erroneously suggesting that deciding Huguenin's case means choosing between competing "constitutional values," [the NY Times] lends cover to the American Civil Liberties Union, which in this case is arguing that Huguenin's civil liberties should be overridden by a principle that cannot be found in the Bill of Rights...

So while I strongly support equal rights for everyone, and am greatly saddened that people out there are still opposed to things like gay marriage, I'm equally troubled by the idea that the government can force someone to express themselves in a manner that they are uncomfortable doing. The government absolutely should be required to treat everyone equally and not discriminate on the basis of who they're attracted to. But it's going way too far to argue that a private business should be forced both to do business with someone, but also to create expression that they personally disagree with.

And, yes, there is a reasonable concern that allowing a photographer (or someone in another profession) to discriminate the services they provide is an obnoxious and discriminatory practice -- but it's one that is rather easily solved without government compelled work and speech: just by letting the world know of the photographer's views, which would hopefully have a negative impact on her business. Compelling her to speak, on the other hand, is tremendously problematic. And it seems to go against most things that I thought the ACLU stood for.

Filed Under: first amendment, free speech, gay marriage, new mexico
Companies: aclu

'Bug' Allows Same-Sex Marriage In Nintendo Game, Nintendo Releases Patch To 'Fix' It

from the or-you-could,-you-know,-not dept

Unless you've been living under a rock lately, you're probably aware that the tide is turning here in the States more and more in favor of rights for the LGBT community. Interestingly, America rests somewhere in the middle on the spectrum on these kinds of issues, with plenty of world nations allowing for more gay rights and certainly many that allow for less. While this one-toe-in-the-water approach is perfectly reflected in entertainment mediums like video games, it's certainly worth noting that games in North America have begun to be more inclusive when it comes to LGBT characters and/or options in so-called "choice" or "sandbox" games. The Sims franchise was somewhere on the forefront of that sort of thing and more recent games like the Mass Effect series finally began to follow suit. And now it appears we can add the notoriously conservative Nintendo to the list of game developers that include such characters in their games.

See, gamers playing Nintendo's Tomodachi Collection: New Life noticed that this latest iteration of the game, which is very much like The Sims, had the option for the first time to have their male characters marry other male characters and raise children together. Hooray for civil rights progress, right guys?

One Twitter user claims to have contacted Nintendo's customer support, which supposedly said this is a bug and that the game needs to be patched. Online in Japan, however, there were many internet users who said they planned on getting this game only after learning of this bug—er, feature.

That Twitter user's story now appears to be confirmed, with Nintendo releasing a patch to fix the "bug", which it says allows for "human relations that become strange." So allowing players to be as gay in their virtual lives as they might be in their real lives wasn't a feature, it was a bug. And you're going to correct it. Here's another idea, and I'm just spitballing here, but how about the fix you release doesn't take away a bit of the humanity of your latest game, but rather extends it to female characters as well? It's not like including gay characters in a game, particularly one that is all about personal choice, means that somehow the game developers all agree in unison that all the morality questions are thrown aside. I happen to think that anyone who finds a problem with homosexuality is on the wrong side of both humanity and biology, but I won't dismiss the right for other people to have a different opinion. The thing is, none of that is the point. I played the Sims. I don't remember any more of an uproar over that game's characters being able to be gay than I remember an outcry over how you used to be able to order a pizza and then build walls around the delivery guy until he died (great fun, btw). Nobody who saw that done suddenly thought EA was supporting delivery boy murder and no one with a lick of sense thought EA was taking some moral stance on gay rights.

And besides all that, the reaction to the bug? Freaking positive.

In Japan, some Tomodachi Collection: New Life owners seem thrilled by the bug, posting photos of their gay couples online. In the images, male Mii characters ask each other to go steady, propose marriage, go on Honeymoons, bathe together, and raise children.

Well, no kidding, because the metrics of the debate are shifting quickly to be more inclusive. Even if one were to think that homosexuality was immoral, you can't lose your stones about it being included in a video game, unless you're also going to take the same stance on murder, violence, theft, cursing, lying, etc. Nintendo made their bones on a stereotyped Italian plumber. Now that Nintendo has decided to erase the option to be gay from this game, I hope to hell the backlash is as brutal as it should be.

Filed Under: bugs, features, gay marriage, same sex marriage, tomodachi collection, video games
Companies: nintendo

Filmmaker Compares Copyleft Supporters To Anti-Gay-Marriage Advocates

from the then-i-get-to-compare-film-makers-to-blue-cheese dept

Oh, where to begin with this one. Once upon a time, in an internet far, far away, there was a Facebook page and a blog (that barely anyone paid attention to) masquerading as some kind of grass roots upheaval in favor of the copyright cartels. It was called Creative America, and man was it terrible. But, as does occasionally happen, this silly land of false statistics and incomprehensible logic bred some interesting discussions between folks on either side of the copyright argument. One of the participants in favor of copyright was filmmaker David Newhoff, someone who I generally thought represented his ideas and opinions with sincerity and class.

Well, to hell with sincerity and class. Apparently you damned pirates and copyleft people are just like homophobic anti-gay-marriage zealots...or something.

It all starts off innocently enough on Newhoff's guest post for The Copyright Alliance (Does that make us the Pirate Empire? But wasn't Han Solo a pirate? I'm so confused). We've got everything you'd expect from someone supporting current copyright, from the wilfully ignorant claim that "Copyright and Free Speech coexisted peacefully for the entire history of the Republic", to the invocation of names like Lewis Black as champions of free speech and free enterprise because Black is "entitled to make a pile of cash" because he's a master at speaking out against the government. Nowhere do we see any actual statistics to back up these claims, of course. There's no long-form history of copyright with big blinking letters saying "No problems here, people". Nor do we have any actual financial data on where Lewis Black has made his money. Was it from the real copyright product, royalties from album sales? Or was it his live performances, tours, and appearances? I certainly don't know, because I don't have that data. And if Newhoff does have that data, he isn't sharing it.

But no matter, because these opinions-as-facts are merely the foundation for one hell of a whopper of a claim: anyone who thinks copyright can threaten free speech is exactly the same as a homophobic bigot. Don't believe anyone could conflate two completely separate issues so badly? Read on, my sweet, naive little zealots:

"Their position reminds me of another First Amendment stumper: that same-sex marriage threatens the Freedom of Religion. As alluded to in one of my recent posts the Kantian principle that your rights end where they infringe on the rights of another is logically implicit, if not explicit, in the broad, human rights established in our laws. In a nutshell, society functions because most of us agree that your pursuit of happiness does not extend to a right to, say, drive an ATV across my yard and tear up the garden."

Here's the setup for the false analogy. You have a foundation of law driven by the Constitution, the "pursuit of happiness", mixed in with a little literal "get off my lawn" attitude, and a cool ATV thrown in to keep the kids happy. Just keep this setup in mind, because we'll get to the problem in a moment.

"The craftiest of gay-marriage opponents will argue that legalizing these unions infringes on their rights to be Christian in America, which is tantamount to undermining religious freedom. Yes, anyone with two working brain cells can recognize that this isn’t sound reasoning so much as thinly veiled bigotry...Similarly, the copyright-threatens-speech proposal uses the illusion of reverse discrimination to suggest that when the producer exercises his copyright, this somehow infringes on the consumer’s desire to reuse or “share” the work as he sees fit, which amounts to a “chilling effect” on speech. Like the same-sex marriage thing, this argument glosses over personal bias to foster a logical leap to a shaky conclusion. Copyright only threatens speech if we agree that the consumer’s right to reuse is more important than the producer’s right to treat his work as property."

And here's where this argument shows itself to be flawed. First, note the attempt to conflate copyleft and bigotry. This is all about setting up good guys and bad guys in the equation, and if you have a problem with copyright, it's "thinly veiled bigotry" and "reverse descrimination". Creators, apparently, are to be lumped into the same boat as other victims of bigotry, and if we can draw a direct line to homosexuals who have been descriminated against, it's an extremely short jump to slavery, interned Japanese Americans, or Jews in Nazi Germany. To borrow (INFRINGE!) a line from Newhoff's own piece, "this sounds dumb because it is". This is a discussion about economics, not bigotry.

Which is where we can point to the clear flaw in Newhoff's argument: yes, there's an argument that the "pursuit of happiness" should apply to all peoples, including the allowance of marriage. And it's also true that the "pursuit of happiness" can prevent me from driving an ATV onto David's well-manicured lawn. But unlike intellectual property, the "pursuit of happiness" was not specifically constructed and even denoted in the Constitution as having its key purpose be the benefit of society at large. The "pursuit of happiness" is personal. Conversely, copyright is supposed to chiefly benefit the public. Mixing these two aspects of our law is disingenous and the attempt to simply label the folks who don't agree with you as bigots is downright distasteful.

Filed Under: copyleft, copyright america, david newhoff, gay marriage, lewis black