Tuesday, December 26, 2017

Tuesday, December 12, 2017

Margot met Robert on a Wednesday night toward the end of her fall semester. She was working behind the concession stand at the artsy movie theatre downtown when he came in and bought a large popcorn and a box of Red Vines.
That option, of blunt refusal, doesn’t even consciously occur to her—she assumes that if she wants to say no she has to do so in a conciliatory, gentle, tactful way, in a way that would take “an amount of effort that was impossible to summon.” And I think that assumption is bigger than Margot and Robert’s specific interaction; it speaks to the way that many women, especially young women, move through the world: not making people angry, taking responsibility for other people’s emotions, working extremely hard to keep everyone around them happy. It’s reflexive and self-protective, and it’s also exhausting, and if you do it long enough you stop consciously noticing all the individual moments when you’re making that choice.
A Viral Short Story for the #MeToo Moment
The depiction of uncomfortable romance in "Cat Person" seems to resonate with countless women.
BBC Trending: Cat Person: The short story people are talking about

I've said it all before.

Sunday, December 10, 2017

See: Tushnet

The distinctions between speech and non-speech, art and non-art, are absurd.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
JUSTICE GINSBURG: --- the question that I started out with, I --- I wanted to clarify that what you're talking about is a custom--made cake. You are not challenging his obligation to sell his ordinary wares, his, as you put it, already--made wares?

MS. WAGGONER: Not at all. And, in fact, Mr. Phillips offered the couple anything in his store, as well as offered to sell additional cakes, custom cakes, that would express other messages.


JUSTICE KAGAN: Ms. Waggoner -­-

JUSTICE GINSBURG: -- you mentioned -­- you brought up Hurley, but in Hurley, the parade was the event. It was the speech, a parade. At a wedding ceremony, I take it, the speech is of the people who are marrying and perhaps the officiant, but who -- who else speaks at a wedding?

MS. WAGGONER: The artist speaks, Justice Ginsburg. It's as much Mr. Phillips's speech as it would be the couples'. And in Hurley [Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.], the Court found a violation of the compelled speech doctrine.

JUSTICE GINSBURG: Who else then? Who else as an artist? Say the --- the person who does floral arranging, owns a floral shop. Would that person also be speaking at the wedding?

MS. WAGGONER: If the --- if they are custom--designed arrangements and they are being forced to create artistic expression which this Court determines is a message --­

JUSTICE KAGAN: So could -­-

JUSTICE GINSBURG: How about the person who designs the invitation?


JUSTICE GINSBURG: Invitation to the wedding or the menu for the wedding dinner?

MS. WAGGONER: Certainly, words and symbols would be protected speech, and the question would be whether the objection is to
the message provided or if it's to the person.

JUSTICE KAGAN: So the jeweler?

MS. WAGGONER: It would depend on the context as all free--speech cases depend on. What is the jeweler asked to do?

JUSTICE KAGAN: Hair stylist?

MS. WAGGONER: Absolutely not. There's no expression or protected speech in that kind of context, but what if --­

JUSTICE KAGAN: Why is there no speech in --- in creating a wonderful hairdo?

MS. WAGGONER: Well, it may be artistic, it may be creative, but what the Court asks when they're -­-

JUSTICE KAGAN: The makeup artist?

MS. WAGGONER: No. What the Court would ask --­

JUSTICE KAGAN: It's called an artist. It's the makeup artist.

MS. WAGGONER: The makeup artist may, again, be using creativity and artistry, but when this Court is looking at whether speech is involved, it asks the question of is it communicating something, and is it analogous to
other protected -­-


MS. WAGGONER: -- forms of speech.

JUSTICE KAGAN: -- I'm quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they're doing something that's of-- of great aesthetic importance to the -- to the wedding and to -- and that there's a lot of skill and artistic vision that goes into making a -- somebody look beautiful. And why -- why wouldn't that person or the hairstylist -- why wouldn't that also count?

MS. WAGGONER: Because it's not speech. And that's the first trigger point -­

JUSTICE KAGAN: Some people may say that about cakes, you know?


JUSTICE KAGAN: But you have a -- you have a view that a cake can be speech because it involves great skill and artistry.
And I guess I'm wondering, if that's the case, you know, how do you draw a line?? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I
think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist??
I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes?? Where does that come in?

MS. WAGGONER: Your Honor, the tailor is not engaged in speech, nor is the chef engaged in speech but, again, this Court -­

JUSTICE KAGAN: Well, why -- well -­ woah. The baker is engaged in speech, but the chef is not engaged in speech?

MS. WAGGONER: The test that this Court has used in the past to determine whether speech is engaged in is to ask if it is communicating something, and if whatever is being communicated, the medium used is similar to other mediums that this Court has protected. Not -­-

CHIEF JUSTICE ROBERTS: Does it depend on -­-

JUSTICE SOTOMAYOR: So that begs the question, when have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten.
Now, some people might love the
aesthetic appeal of a special desert, and look at it for a very long time, but in the end its only purpose is to be eaten.
And the same with many of the things that you've mentioned. A hairdo is to show off the person, not the artist. When people at a wedding look at a wedding cake and they see words, as one of the amici here, the pastry chef said, there was a gentleman who had upset his wife and written some words that said "II'm sorry for what I did,"" something comparable, and the chef was asked, the cake maker was asked, was that affiliated with you?
And she said no. It's affiliated with the person who shows the cake at their wedding. It's what they wish to show.
So how is this your client's expression, and how can we find something whose predominant purpose is virtually always to be eaten? Call it a medium for expressive expression. Mind you, I can see if they've -­ create a cake and put it in a museum as an example of some work of art, that might be different because the circumstances would show
that they want this to be affiliated with themselves.
But explain how that becomes expressive speech, that medium becomes expressive speech.

MS. WAGGONER: Certainly not all cakes would be considered speech, but in the wedding context, Mr. Phillips is painting on a blank canvas. He is creating a painting on that canvas that expresses messages, and including words and symbols in those messages.
-"Certainly not all cakes would be considered speech"

-"You are not challenging his obligation to sell his ordinary wares, his, as you put it, already--made wares?

MS. WAGGONER: Not at all. And, in fact, Mr. Phillips offered the couple anything in his store, as well as offered to sell additional cakes, custom cakes, that would express other messages."