Friday, October 27, 2017

Masterpiece Cakeshop v. Colo. Civil Rts. Comm.: Is making a wedding cake "speech" protected by the First Amendment?

Dale Carpenter has this post on the Volokh Conspiracy blog discussing an amicus brief he and Eugene Volokh have filed in the Masterpiece Cakeshop Supreme Court case in which a baker, Jack Phillips, refused to sell a wedding cake to a gay male couple. I had been under the mistaken impression that Phillips had refused to sell the wedding cake because he had been unwilling to bake a custom cake that endorses same-sex marriage. But as is made clear in the post, Phillips flatly refused to sell a wedding cake for a same-sex marriage. Period. This is significant because, as explained by Carpenter, the First Amendment's protection of "speech" must have limits, and cake-making has not traditionally been recognized as an expressive medium. If every expressive act were protected, then First Amendment protections would have no bounds.

In my view, this brief strikes the right balance. It recognizes that even businesses have First Amendment protections against compelled speech. Thus, if Phillips had been asked to customize a cake with a pro-gay message that he objected to, he would have a stronger claim. So too would a photographer or a singer who refused to participate in a same-sex wedding because photography and singing, unlike cake-making, are inherently expressive. But merely making a cake is not expressive, so it is not protected speech under the First Amendment.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.