The Gross National Debt

Friday, April 7, 2017

What is free speech?

NB: I am aware the formatting is wonky. Blogger refuses to cooperate. The HTML is batshit crazy. Enjoy anyway.

Can a florist be required to make a flower arrangement against his/her will?

Who wants the arrangement and what it is for is irrelevant. Can the florist be forced to do it?

Y'all should know by now that I say no. But there's a bigger question here and it is one of the Bill of Rights Amendments.

Free speech. 

Is making a flower arrangement free speech? Painting a portrait or taking a picture of flowers is absolutely free speech.

What is free speech

Seriously. What is free speech? How far does it go? What's covered?

The Bill of Rights leads with this - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Over the years, various laws have attempted to add minutiae on this amendment. Damn. I need to quit trying to be erudite– damn.

Over the years, politicians have tried to restrict your free speech. (whew).

The court system has weighed in regularly. The United States v. Progressive is the most important, to my thinking. Briefly, a magazine announced it was publishing in the next issue the plans for an atomic bomb. The gummint sued to stop publication. The specific plans became a moot point when another magazine, unannounced, published the same plans.

When free speech stops

When, where, why, how and when does free speech stop? This is both so well-defined it might be cut with a precision laser and so nebulous the Federal Government budget is simple in comparison.

The simple ones - Don't threaten people. When you are on the clock, your employer can limit your free speech. "Employees don’t have a Constitutional right to free speech or freedom of expression at work. The Constitution’s right to free speech only applies when the government is trying to restrict it.

Your right to flap your piehole can also be limited by other circumstances. This is where the nebula starts to spread. Libel and slander are the best example. It is impossible to libel or slander the president. Say the same thing about your neighbor and you MIGHT be subject to a legal bodyslam.

Except when clearly stated as opinion it is not libel or slander.

Yeah. Confusing.

So what is free speech?

Say it.

Write it. This includes computer programming as well as anything you write and post online. Like this column.

Dance it.

Design it.

Build it.

Paint it.

In short, if you can copyright it, it's free speech.

Slapping copyright around

Is copyright equal to free speech? Sorta yes, well no, not really, kinda, in a roundabout way, not quite, depends on the circumstances and ppphhhbbbbtttttt.

If you can slap a copyright on it, then it's free speech. A good guideline is: The act of creation also creates a copyright. Getting a formal copyright through the Library of Congress adds some legal protections.

So can flower arrangements be copyrighted? No, according to current law. Flower arrangements cannot be copyrighted.

If the flower arrangement could be copyrighted, that means it becomes an expression (intellectual exercise). Expression is specifically protected under the Constitution and given legal standing for recourse under copyright law. Expression is also given immense protections under the Constitution. Not absolute protection, though. In this case, SCOTUS ruled that dancing is free speech, but can be restrained. 

Government has, does and will restrict how things are used.

Here's an example.


A potter casts bricks to make a wall. He can copyright his color and shape of the brick. He then makes the wall. Clearly art. Clearly protected by copyright law. He can patent (more below) his process for making the bricks. (Assume he has a unique way of doing it.). He's got legal protection from several directions.

He cannot erect a brick wall across a public highway.

He can argue that the wall across the public highway is an artistic expression of free speech. Granted. But his right to put a wall across a public highway is less than your right or my right to travel down that public highway.

If he builds his own stretch of highway across private property, he can put up the wall with no problem, provided he has permission from the property owner.


So take a look at the case of the Washington state florist who refused to make flower arrangements for a same-gender wedding.

Why is this a free speech issue? Is this free speech?

Look at the US copyright codes. Or don't, because it is incredibly tiresome. Here's a FAQ page that is easier reading. FAQ 1 is where I'm headed today. "Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. "

"Artist works."

It's my considered opinion if you can file a copyright on it, then it is absolutely free speech. The famed Zapruder film of JFK's whackin' and the resulting court case over copyright is seminal to my thinking.

Sigh. Sorry about that. 

Try this: The Zapruder film lawsuit clearly says what copyright covers.

This still leaves a lot of unanswered questions


Really. What is art anyway? Larry Shillabeer was one of my professors in the art department in college. In the art class everyone was required to take, Larry said art is "anything a person creates." Pretty broad. I also agree with him. The courts do too. 

The First Amendment Center takes a look at art and its history in the courts and legislative systems. Long read, but valuable info.

Are flowers art? Hrm. Better question - can flowers be copyrighted? No. A flower can be patented.

There's a gargantuan monkey wrench. Copyright protects the intellectual property. Patent protects the engineering that turned the intellectual property into the also protected physical property. 

Patent ≠ copyright. Patent ≠ free speech. 

Yeah. That's confusing, but I can't figure how to make it simpler.

So, back to the question:


Living flowers, no. The Copyright office does give protection under the law to "Artificial flowers and plants."

Good enough.
Aaight, how about cut flower arrangements? Is that art? Can that be copyrighted? Joan Infarinato asked the same question. It's also been addressed by the legal system.
The decision includes a lot more reasoning and comments that pretty clearly show the flower arrangements here could not be copyrighted. Very importantly, the judge states in his decision, "With respect to the arrangements in question, however, plaintiff's president testified that he did not create anything new."
That "new" is a critical part of copyright. Not the only part, though. Creativity is also integral

Gardenia Flowers, Inc. v. Joseph Markovits was decided in 1968 by a US District Court. A quick read of this decision says cut flower arrangements cannot be copyrighted. Read the whole thing and you find that decision is HIGHLY qualified. Here's an example of the court's narrow reasoning on this specific case, "Plaintiff has conceded that its claims are limited to the arrangements of the flowers in the corsages. No claim is made that the component parts thereof are covered."
Hrm. By that reasoning, even a painting can't be copyrighted. A painter merely buys components (paint, canvas, etc) and puts them together.

Still haven't answered the question.

What this comes down to is:


Go back to the First Amendment. The press (of which I am a member) is the only business listed in the Constitution and the only one given that level of protection.

Here's why this matters. I am also a freelancer, a wordmonger, a writer for hire, a linguistic prostitute as Rebel often says. (Read his stuff.) You pay, I write.

Unless I don't want to.

I can't be forced to write for you. The newspaper I run cannot be forced to publish anything.

Nothing you can do about it. The weight of centuries of legislative and case law and the First Amendment laugh in your face.

Remove this legal protection. The newspaper is then identical to the appliance repair shop across the street, the tire shop around the corner and the furniture store across the intersection. Exactly the same from a purely business perspective.

Put those legal protections back in place and this is not even a different ballgame. It's an entirely different construct from the ground up.


The question now is:

Are the legal protections given to the newspaper the same legal protections given to someone who creates other copyrightable items?

Ooo. Yes? No?

I say yes.

A oil portrait artist cannot be forced to paint someone's picture. Or can he?


But he's in business to serve the public, you say.

I disagree partly. He's in business to make a profit. He does that by serving the public.

He has a business license and pays taxes, you say.

So does the newspaper. Everything the photog studio has to have, the newspaper needs to have. There are some niggling technical point like backdrops, studio lights and etc. Newspapers have these too, but not quite the same as the photog.

So here's a difference.

I can't be forced to write an article for you. But the newspaper sells ads. Can I be forced to sell you an ad? Eyeball this - . Advertising is restricted in what MAY be published.

So again, can I be forced to publish your paid ad? Let's say you have a same gender wedding. I refuse to publish your wedding announcement (for the record, the last wedding picture I published in the paper was two ladies whom my brother married to each other in the bank park. No charge.).

Can you buy space to run the announcement?

Newspapers reject advertising all the time, even when it is perfectly legal to publish the ad.

Why is a photographer different?

As I see it, a florist is an artist. The florist creates art. Art is copyrightable and free speech. You cannot force someone to say something they do not want to say. You cannot force someone to create art against their will.

A florist is under no obligation to create a flower arrangement for anyone.

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