How First Amendment Speech Doctrine Ought to Be Created and Applied in the Colorado Baker/Gay Wedding Dispute at the Supreme Court

One of the most-watched cases of the Supreme Court’s upcoming Term is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The lawsuit questions whether Colorado’s public accommodations law—which prohibits covered persons from withholding goods, services, or facilities from an individual or group based on, among other things, sexual orientation—violates the First Amendment when it is applied against someone who refuses to create custom wedding cakes for same-sex wedding celebrations because doing so would violate the baker’s sincerely held religious beliefs.

The petitioner Jack Phillips, who owns and operates Masterpiece Cakeshop, Inc., declined in 2012 to create a wedding cake for a gay couple (even though he offered to sell them other baked goods) because creating a wedding cake for a same-sex wedding would conflict with his religious beliefs. When Colorado authorities filed a complaint against him under state anti-discrimination laws, he responded by invoking his rights under the freedom of speech and freedom of religion clauses of the First Amendment. His claims were rejected by Colorado administrative and judicial tribunals, and he then sought and obtained review in the US Supreme Court.

While Mr. Phillips continues to assert both the speech and religion arguments at the Court, we focus only on the free speech claims in this column.

A Current Absence of Comprehensive Doctrine on Compelled Speech

The argument that Mr. Phillips makes under the free speech clause is straightforward: he feels that he expresses himself through the custom cakes he creates, and that he would be impermissibly compelled to express himself in ways he disagrees with if he were forced (by virtue of Colorado’s anti-discrimination law) to create cakes for same-sex weddings.

As a doctrinal matter, his claim ostensibly implicates the First Amendment’s concern over “compelled speech.” Famous cases in which the Court has held that speech was impermissibly compelled include: West Virginia State Bd. of Educ. v. Barnette (striking down requirement that children must recite the pledge of allegiance in school); Wooley v. Maynard (striking down New Hampshire’s requirement that cars in the state bear license plates that include the state’s “Live Free or Die” motto); Miami Herald Pub. Co. v. Tornillo (striking down a Florida law mandating that a newspaper give space in the paper to political candidates who have been criticized by the newspaper to respond); PG&E v. Public Utilities Commission (striking down a California regulatory ruling that required a public utility to include in its mailings to customers an insert from an organization critical of the utility); and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (striking down a Massachusetts attempt to force organizers of a Saint Patrick’s Day parade to include a contingent of gay marchers).

Prominent cases in which assertions of impermissible compelled speech have been unsuccessful include (somewhat recently) Rumsfeld v. Forum for Academic and Institutional Rights (rejecting a claim by law schools that a federal requirement that the schools permit military recruiters on campus impermissibly compels speech), and Pruneyard Shopping Ctr. v. Robbins (rejecting a claim by a commercial property owner that the state impermissibly compelled speech by requiring it to allow third parties to engage in expressive activities on its premises).

Even a quick review of these past outcomes suggests that there is no case particularly analogous to Mr. Phillips’s in which the Court has found there to be impermissible compelled speech. For starters, the government regulation at issue on its face does not require anyone to communicate a specific message. It is a neutral law of general applicability that is not directed at speech at all, but instead at the provision of goods and services—the overwhelming majority of which are not expressive in nature.

Moreover, and related, the conduct (creation of cakes) which is alleged to constitute compelled speech would not be considered speech if it was subject to direct negative constraint or regulation (as opposed to the alleged affirmative compulsion here). Thus, if state law regulated the size, ingredients, or processes for the creation of commercial cakes, we would not subject such regulation to any stringent judicial review simply because, say, a particular baker were to assert that using a particular dye or a particular kind of oven were essential to creating the exact cake masterpiece he sought to produce, just as a law limiting the size or contours of buildings would not abridge the free speech rights of an architect even if the architect felt they burdened the creativity of her design.

But to say this case doesn’t seem like a good candidate for application of the compelled speech category doesn’t really explain why Mr. Phillips’s claim ought not to prevail. Part of the problem in fashioning such an explanation is that the Court—to this point—has not done a very comprehensive job in creating compelled speech doctrine, even as the justices have accepted or deflected compelled speech claims in particular cases. So, regardless of outcome, we very much hope the Court uses the Masterpiece Cakeshop case to develop a more fleshed-out and functional doctrinal framework that includes guidance on the applicable standard(s) of review.

A Complex Doctrine of Suppression of Speech

This is precisely what the Court has done in cases involving alleged suppression (rather than compulsion) of speech. Here—in these core First Amendment cases—freedom of speech is protected under a complex, sophisticated, and nuanced doctrinal framework which frequently requires the application of more or less rigorous standards of review, and which often permits the regulation of speech to be justified and upheld. Courts look at the nature of the regulations to determine whether they are viewpoint discriminatory, content discriminatory, or content neutral. Judges also look at the location where the speech occurs to apply a forum analysis; they look at the kind of speech being regulated to ascertain whether it is fully protected, less protected, or unprotected; and they look at whether the law on its face targets expressive activity or whether it applies to generally non-expressive conduct and incidentally impacts speech. All of these factors bear on whether government regulations should receive a very rigorous or relatively lenient standard of review.

The complexity of free speech doctrine serves an important purpose. It exists because we do not want freedom of speech to disable government from accomplishing many important non-censorial goals. But we also want to promote more speech rather than less where we reasonably can. Accordingly, we have developed doctrine that provides serious protection to freedom of speech, but also takes into account the numerous state interests that justify restricting speech in various circumstances. That’s a complicated job and it requires complex doctrine to do it.

The same concerns apply to compelled speech cases. Government regulations that require a person to speak inauthentically raise serious freedom of speech issues. But some doctrinal limits are necessary to prevent the compelled speech category from extending too broadly. Distinctions need to be drawn so that every compelled speech challenge does not require government to satisfy strict scrutiny review to justify its actions. Like (more garden-variety) speech protection doctrine, we need to develop a framework that protects the right not to be compelled to speak, but that also takes into account the numerous government interests that justify requiring speech to be expressed in various circumstances.

Unfortunately, the doctrinal framework courts use in cases involving the suppression of speech cannot simply be transposed to deal with the problem of compelled speech. It would make no sense to do so. Compelling someone to express threats or obscenity, for example, would clearly constitute compelled speech even though such speech is unprotected against prohibition. Existing free speech doctrine can inform the framework courts develop for compelled speech, but it cannot provide a controlling template for resolving compelled speech cases.

What a Nuanced Compelled Speech Doctrine Might Look Like

So what should compelled speech doctrine look? Obviously, we cannot provide a complete answer to that question in a column of this size. However, we can identity core elements of such a doctrine that relate in particular to the Masterpiece Cakeshop dispute. On one side of the doctrinal ledger, we think the following various factors—all other things being equal—cut in favor of more rigorous judicial review: (1) The government singles out expression in its mandate, rather than simply requiring some activity that may or may not be expressive; (2) The actions compelled are conventionally understood to be communicative in nature; (3) There is a high likelihood of misattribution—that is, the case presents a situation (which is rare) in which the audience will likely believe the (alleged) compelled speech reflects the actual beliefs of the person speaking under compulsion; (4) Relatedly, a situation is presented in which by compelling expression the government actually interferes with the compelled speaker’s ability to communicate his own message (Miami Herald would an example); (5) The government actually dictates the content or viewpoint of the expression at issue or, worse still, the government requires an explicit affirmation of a particular belief, as in Barnette; and (7) Speech is compelled in an intimate setting (personal home, car, clothing) in which individual dignity and autonomy interests are heightened (as in Wooley).

Conversely, the absence of these factors leans in the direction of less rigorous review. For example, because the problem with compelled speech is that someone is forced to communicate a message he or she finds objectionable, there is no foundation for rigorous review if courts determine as a matter of social reality that what the claimant was required to do would not ordinarily be understood as involving the communication of a message. Relatedly, the fact that a regulation is not directed at speech at all, but instead is directed at conduct which is not conventionally or inherently characterized as or associated with speech supports deferential review. Here we make use of the insight of the famous United States v. O’Brien draft-card-burning case, concerning an alleged impermissible suppression of speech, and apply it to the alleged impermissible compelled speech setting. Further, where the context is a commercial one, rather than a more intimate one, rigorous review is less appropriate; the larger, the more businesslike, and the more impersonal the setting, the less plausible it is to invoke the kind of dignity and autonomy interests that at the end of the day underlie much of the concern over compelled speech.

So how do these factors apply in the Masterpiece Cakeshop case? We think they militate strongly against the baker’s compelled speech claim.

There is no compulsion to directly affirm a belief, and the state is not scripting a particular message that the baker must express. Nor is the baker being compelled to endorse or associate himself with a point of view contrary to or inconsistent with his own. Conventional cake messages such as “Happy Birthday,” “Happy Anniversary,” “Congratulations on your Graduation” or “Congratulations on your Wedding,” are barely viewed as communicative acts at all, let alone by the baker. Wedding cakes are not understood as taking a position on the merits or morality of the marriage (an interracial marriage, an interfaith marriage, or an elderly person marrying a so-called “trophy spouse”).

Accordingly, there is no risk of misattribution here. When a parent buys birthday cakes for his children, no one thinks the baker knows who his kids are or cares whether they have a happy birthday—even if the cake says “Happy Birthday” in the frosting. No one thinks of these cakes as communicating a message from the baker to or about the customer or to the general public.

Baking a cake is conduct and would be characterized as conduct if subject to government regulations limiting size of the cake and the dye or ingredients that might be used—even if these requirements interfered with baker’s creative choices. Baking a birthday or wedding cake is, as a matter of social reality, unlikely to be understood as a communicative act for free speech purposes. A welcome mat has words on it, but we do not consider the makers and sellers of such mats to be saying anything. Many culinary dishes may involve creative decisions by chefs, but few of us would argue that food preparation is speech for constitutional purposes.

The regulation is a neutral law of general applicability which in the vast majority of applications does not involve conduct deemed to be expressive. It does not compel a specific message. By analogy, the law here might be compared to a facially neutral ordinance, say a noise ordinance, that incidentally limits some speech. The highest standard of review such laws would ever receive is intermediate level scrutiny.

Now perhaps a cake that is ordered with an unusual political or religious message could be understood as matter of social reality to be clearly communicative in nature and to endorse a particular viewpoint by the baker. If the government demanded that a baker place a specific politically charged message on a cake, perhaps we could say he would be required to create a billboard cake much like the car owner in Wooley who objected to having his vehicle used as a billboard to endorse the state’s viewpoint. But even here, the commercial setting would make the baker’s setting arguably distinguishable from—and certainly much less intimate than—the automobile-owner context.

To be clear, we take no position in this column on how this dispute might be resolved as a matter of social policy. As to the constitutional law question involving compelled speech, however, we think the key factors we have described do not support rigorous review in this case.