Free as in speech or free as in…$5, please
Originally published on Medium on March 9, 2018.
Is it ever okay to refuse service to another person because doing so would violate your deeply held beliefs? There is certainly some point at which it is okay to refuse. It seems hard to argue that a person should be forced to participate in a ceremony that violates their beliefs.
Maybe that is the relevant distinction: a person cannot be physically forced to participate, but they cannot control how someone uses a thing they created. This seems intuitive. A seller should not be able to refuse selling an item because they disagree with how it should be used (nor do they have any right to know how it will be used). Yet this distinction does not feel quite right. If a buyer asks for a poem to be read at a ceremony, then the poet is, in a sense, being forced to participate in the ceremony. The words are not coming out of the poet’s mouth, but they are their words created for this ceremony. Maybe the distinction then, is based on how expressive the creation is. This gives a broad basis for a right of refusal. In the United States, what constitutes an act of protected speech has been interpreted broadly. A poem certainly counts as speech, but so do aspects of appearance, other creative acts, and more.
Yet relying on whether or not a particular creation should count as protected speech gets messy fast. A baker may have put a lot of thought and meaning and skill and effort into creating a cake that they sell straight off the shelf without any modification. Yet once created, it does not seem as if the baker can restrict who it can be sold to. Anyone can just waltz in and take it home. Conversely, if someone asks a baker to stick a cake topper on a Twinkie, that at least arguably seems like expressive speech despite the lack of creative value.
The obvious difference between these two examples is the timing. In the first case, the expressive labor was performed without any knowledge of how it would be used. In the second case, that knowledge was there. However, it seems wrong to say that timing alone is enough to turn a creative act from non-protected speech to protected speech. If that were the case, a creator could create a right of refusal merely by switching to just-in-time production. Whether or not free speech concerns pertain to a sale could vary based on whether or not the creator has recently run out of stock. These consequences seem ridiculous.
(As an aside, I feel like my daughter during storytelling. To stretch out bedtime, whenever I set up a solution to the problem set up in the plot, she interjects, “But that didn’t work!”)
It seems to me that what matters is whether or not the usage could be considered expressive and that expression seen as forced participation in something they may disapprove of.
To just briefly touch on the first requirement, I think that a use is likely to be expressive if (1) the creation itself is seen as the expression of the creator(s), not a company and(2) the use is an expression of the person who received the item or service. In other words, an expressive item put to a non-expressive use (a custom knife used to cut bread) or a non-expressive item put to an expressive use (a mass produced candle used in a wedding candle lighting ceremony) is not problematic. In particular, what matters is how the service or item will be used, not who will be using it. Sometimes the how and the who are hard to separate — most people by now will probably have figured out that lawsuits involving wedding services for gay couples inspired this train of thought — but it is important to note that, at least in theory, the two are different. Determining when (1) and (2) are met is non-trivial, but I will take as a given that they are fulfilled in the discussion bellow.
My focus, for the rest of this essay, is trying to determine when an expressive usage of an expressive item can be seen as forced participation. (Note that I talk mostly about items because services are often more clearly participation. However, the ideas below apply just as much to services as as items.)
There are two principles I want to preserve: items available for general sale should not come with a right of refusal, and a seller should not be able to create a right of refusal merely by shifting the time of creation. As the examples above illustrate, preserving these properties means that neither creation time nor the amount of work that went into the creation can be what matters. I propose that what matters is that the final form of an item was fundamentally created for a particular use — not because of timing but because the buyer’s requirements for the use helped determine the final form of the item ordered.
Let’s note how this distinction might make various people unhappy. Those who have an interest in preventing discrimination will likely be unhappy that this means that even small customizations can be refused — putting the cake topper on the Twinkie to go back to an earlier example. Those who have an interest in protecting people from participating in ceremonies they disapprove of will likely be unhappy that this could mean that a dressmaker or baker cannot refuse to sell to a couple if they were merely fulfilling an order from a fixed menu of choices.
Taking an item’s having been fundamentally created for a particular use as the relevant factor, how can we practically distinguish the cases where there is a right of refusal from ones where there are not? It is not based on time of creation. It is not based on what sort of thing is being created. It is not based on amount of effort or skill or creativity.
My proposal is that what matters is the form the order takes. Define a transactional sale as a sale where the item or service ordered is chosen from a fixed menu and the seller is expected to fulfill that order exactly as specified with no further input from the buyer. Note that this can include customized items if the customization menu is predefined. Define a commissional sale as a sale where the final form of the item or service purchased depends on a conversation between the buyer and the seller. Note that this conversation need not actually happen (the buyer could be happy with the default). All that matters is that the buyer had an opportunity to influence the final form of the item or service ordered that goes beyond choosing from a fixed menu. There is no right of refusal for transactional sales. There is a right of refusal for commissional sales (that also fulfill the other criteria mentioned above).
This definition is far from perfect, from anyone’s point of view. Some sales may fall into a grey area between these. In fact, I think that defining what really counts as a commission or not is a significant problem in its own right (should the cake topper on the Twinkie count?). At least this gives us a semantically meaningful way to classify different cases. This definition still allows situations that are less than desirable. For example, it can be hacked. Having a fixed menu of color choices would result in a transactional sale in this model. Offering the same set of color choices indirectly via a statement, “Other choices available upon request” would be commissional. On the other side of the debate, this definition allows someone to transactionally buy an item whose creator is readily identifiable and use it in a ceremony the creator would refuse to participate in. The buyer can even make it a core part of their ceremony to identify the creator, if they so desire. (This might seem unrealistic. If the item in question is, say, a dress, “I’m wearing a Minnie Mouse creation” strikes us as rather too shallow for a meaningful ceremony. A small modification, such as naming the author of a passage read in the ceremony, makes it more realistic.)
Still, this gets rid of the impact of arbitrary differences in timing. It does not require judgment of where the threshold of expressive vs non-expressive creation lies (although I suspect that there is a correlation and expressive creation is more likely to be offered commissionally than non-expressive creation).
Compared to the ideas tried at the start, this division more directly captures the intuition that it is forced participation that makes it reasonable to sometimes allow a right of refusal in a commercial context. A commissional order, an order that was created through a conversation, is a type of participation in an activity the seller finds morally abhorrent. In a transactional order, the item may be used in a way the seller would object to, but they themselves never were made to participate.
Plus, an idea that makes everyone a little unhappy is more likely to be right than one that makes everyone happy, right? (I kid!)
(Note: The title is an allusion to the common open source distinction between free as in speech or free as in beer. And, because you need random children’s show trivia, wearing a Minnie Mouse creation comes from the episode of Minnie’s Bow-Toons where Penelope Poodle visits Minnie’s Bowtique.)
Credit where credit is due: The core of these ideas were developed in a discussion hosted by Christof Harper on Google+. This in no way implies that he endorses these ideas. The views contained are solely my own.