FAN 168 (First Amendment News) Resolution of wedding cake case — is it all about fashioning the facts?
With oral arguments set for December 5th in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the central arguments in the case may have less to do with the law and more to do with the particular facts. On the one hand, if the relevant facts prove that there was no more than refusing to bake a cake for a gay couple, then the road to First Amendment victory will be a difficult one. On the other hand, if the pertinent facts point to a request followed by a refusal to create or design a cake for a gay weddding, then the First Amendment free expression claim will be far stronger.
So which is it? Is this a baking case or a create and design case? To answer that question, I turned to some of the briefs presented in the case. Before going there, however, consider the following five scenarios:
Scenario # 1: Gay couple walks into Christian bakery and attempts to buy a generic wedding cake from refrigerator display. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).
Scenario # 2: Gay couple walks into Christian bakery and orders a generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).
Scenario # 3: Gay couple walks into Christian bakery and asks if they design cakes for same sex couples. Owner says no. Couple then attempts to buy generic wedding cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).
Scenario # 4: Gay couple walks into Christian bakery and orders a generic wedding cake. They then ask to purchase two grooms to place on the cake. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).
Scenario # 5: Gay couple walks into Christian bakery and asks if they will create and design a wedding cake for them. Owner refuses to sell to them on religious grounds (oppsition to same-sex marriages).
Question: For First Amendment freedom of expression purposes, does the difference in facts require different constitutional outcomes?
The Briefs in the Case
FACTS PORTRAYED AS “CREATE” AND “DESIGN”
Colorado Court of Appeals’s Statement of Relevant Facts
“In July 2012, Craig and Mullins visited Masterpiece, a bakery in Lakewood, Colorado, and requested that Phillips design and create a cake to celebrate their same-sex wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs . . .” [underlining added]
→ Mullins v. Masterpiece Cakeshop, Inc. (Colo. App., 2015)
Petitioner’s Statement of Relevant Facts
“Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design. App. 275-277a, ¶¶16-22, 25. For this reason, Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding, App. 287a, ¶ 78, but offered to make any other cake for them, id., ¶ 79.” [underlining added]
→ Cert Petition by Jeremy Tedesco (counsel of Record)
“Phillips gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations. JA164. But he cannot design custom cakes that express ideas or celebrate events at odds with his religious beliefs. JA158-59, 164-66. For example, Phillips will not design cakes that celebrate Halloween; express anti-family themes (such as a cake glorifying divorce); contain hateful, vulgar, or profane messages (such as a cake disparaging gays and lesbians); or promote atheism, racism, or indecency. JA165.”
“Craig and Mullins were browsing a photo album of Phillips’s custom-design work, JA39, 48, 89, when Phillips sat down with them at his consultation table, JA168. After Phillips greeted the two men, they explained that they wanted him to create a cake for their wedding. Id. Phillips politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them. Id. Craig, Mullins, and Munn expressed their displeasure and left the shop. JA43, 168.” [underlining added]
→ Petitioner’s Merits Brief by Kristen K. Waggoner (counsel of Record)
Government’s Statement of Relevant Facts
“In July 2012, respondents Charlie Craig and Da- vid Mullins visited Masterpiece and asked Phillips to ‘design and create a cake to celebrate their same-sex wedding.’ Pet. App. 4a.” [underlining added]
“Craig and Mullins sat down with Phillips at Master- piece’s ‘cake consulting table’ and told him that they wanted a cake for ‘our wedding.’ Pet. App. 64a. Phillips informed the couple that he does not create wedding cakes for same-sex weddings, but that he would make them any other type of cake or other baked good.” [underlining added]
→ Brief for the United States as Amicus Supporting Petitioners, Jeffrey B. Wall (Acting Solicitor General)
→ Amy Howe: “because Phillips . . . believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.” [Underlinning added]
FACTS PORTRAYED AS “BAKING” OR ‘REFUSING TO SELL A “BAKED” CAKE
Respondents’ Statement of Relevant Facts
“Mullins and Craig expressed interest in buying a cake for “our wedding.” Pet. App. 64a. Phillips refused to serve them, explaining that the Company had a policy of refusing to sell baked goods for weddings of same-sex couples. Pet. App. 65a.2 Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. Pet. App. 65a. As the Administrative Law Judge in the Colorado administrative proceedings found, “[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.” Pet. App. 75a.” [Underlining added]
→Brief in Opposition Leslie Cooper (counsel of Record)
→ David Savage: “‘Sorry, guys, I don’t make cakes for same-sex weddings.’ With that blunt comment, Jack Phillips, a baker who designs custom wedding cakes, sent two men out the door and set off a legal battle between religious liberty and gay rights that comes before the U.S. Supreme Court this fall.” [Underlining added]
“Food preparation is not a core First Amendment Activity”
“Amici are a group of 222 leading chefs, bakers, and restaurateurs from across the country. They submit this brief to convey their first-hand perspective, as culinary artists, on why application of public accommodation laws in cases such as this one do not impinge on the core expressive exercise of their talent and skill. . . .”
“Notwithstanding the talent and skill required to create fine cuisine, and the expression that may flow from it, amici acknowledge that food preparation is not a core First Amendment activity. Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component: it is made to be eaten. For that reason, food products (and their preparation) are not necessarily protected by the First Amendment.. . . ”
“Even when prepared by renowned chefs, food retains a clear non-expressive purpose—namely, consumption. No matter how intricate, creative, and aesthetically pleasing a dish might be, it is not designed to be displayed in perpetuity, but rather to be served and eaten. With a clear “non-expressive purpose,’ food items may be appropriately “classified as *** ‘commercial good[s],’ the sale of which likely falls outside the scope of the First Amendment.‘ . . . .” [citation omitted and underlining added]
“Whether or not the creation of cakes or other food products implicates the First Amendment, any such protection does not entitle a chef to violate laws and regulations that do not target expressive activity. A chef may not evade health laws that preclude the use of certain unsafe ingredients on the ground that he prefers to cook with them. . . .” [Underlining added]
→ Brief of Chefs, Bakers, and Restaurateurs as Amici in Support of Respondents, Pratik A. Shah (counsel of Record)
Car Dealership Raises First Amendment Defense in Firing Transgender Person
Writing in LGBTQ Nation, David Reddish reports: “Furthering its image as a state of irritable bigots, a Texas car dealership claimed protection under the First Amendment this week in a lawsuit by a former employee who says the business fired him because he’s transgender.”
“Bradley Rudkin, the former general sales manager of Roger Beasley Mitsubishi, an Austin based car dealership, filed a lawsuit on August 1 claiming wrongful termination from his job. Ruskin, a transgender man, claims the business fired him without warning solely for being transgender. Lawyers for the car dealership filed a motion to dismiss the lawsuit, claiming that the business had a right to fire Ruskin as a matter of free speech. Attorneys for the Mitsubishi dealership have argued that firing Ruskin makes a public statement, and therefore the business was within its legal rights to do so. . . .”
College Libraries Considering Inserting “Warnings” in Books & More
This from Stan Griffiths writing in the The Sunday Times: “Universities are considering the insertion of warnings into books and even moving some off open library shelves altogether to protect students from “dangerous” and ‘wrong’ arguments.”
“The proposal could hit books by climate-change sceptics, feminists, eugenicists, creationists, theologians and Holocaust deniers. It will generate new controversy over free speech at British universities, where speakers have been ‘no-platformed’ because of their views.”
“The move on books follows a campaign to restrict access to work by the historian David Irving, which has already resulted in some university libraries, including Churchill College, Cambridge, moving his books into closed storage. Others, such as University College London, have also labelled some of Irving’s books “Holocaust denial literature”, or shelved them with historiography rather than history.”
“Manchester has refused to remove Irving’s books from open display, arguing that making them available to students is a matter of free speech, which universities have a duty to uphold.”
“The director of library services at UCL, Paul Ayris, revealed the decision to move the Irving books was based on ‘contemporary thinking among librarians.’ This included a study “of the sometimes complex ethical issues of library neutrality, in relation, for example, to climate-change denial, and questions of equality and diversity, as well as Holocaust denial.'”
“Ayris also referred to a campaign directed at Vancouver Women’s Library to ban 20 feminist titles including works by Andrea Dworkin and Catharine MacKinnon on the grounds they might offend transgender people and sex workers.”
“The debate is being led by a group called the Radical Librarians Collective, which argues that pretending that libraries are ‘neutral’ in the way they display books ‘maintains the status quo of white supremacist capitalist patriarchy.’ . . .”
→ Professor Geoffrey Stone comments: “This demonstrates the problem with permitting persons in positions of authority to censor the views they don’t like. One person hates speech that denigrates women, another hates speech that advocates abortion; one person hates speech that defends homosexuality, another hates speech that condemns homosexuality; and on and on and on. We should not allow those in power to decide what views we can and cannot express.”
Univ. California Launches National Center for Free Speech and Civic Engagement
“The creation of this center comes at a critical time, not only for higher education, but for our country as a whole. Through research and years of teaching, I have seen the growing imperative to improve understanding of free speech issues.” — Howard Gillman, Chancellor, University of California, Irvine
This from the Center’s website:
The Center explores how the fundamental democratic principles of free speech and civic engagement must adapt to the challenges and opportunities of modern society. Through research, advocacy, debate and discussion, the Center helps ensure that the next generation of leaders is prepared to defend and advance these values.
As college campuses across the country have grappled with questions of free speech and civic engagement, many have experienced a level of activism, controversy and backlash unlike anything seen in this generation. As a result, a wide range of people — from college students to university presidents to leading legal scholars to the president of the United States — have questioned the meaning and role of free speech on college campuses. These questions have sparked a national debate about the intention, scope and application of the First Amendment and challenged long-held views about freedom of expression developed in the wake of the Free Speech Movement born at UC Berkeley.
Cognizant of both the enduring constitutional principles of free speech and the nature of our changing times, the Center focuses on addressing if and how college students’ relationship to the First Amendment has fundamentally shifted from the 1960s and what can be done to restore trust in the value and importance of free speech among college students, other members of university communities and broader society.
In addition to the policy work conducted by members of its Fellowship Program, the Center hosts activities and events aimed at restoring trust in the value and importance of free speech.
“There have been more serious issues about the 1st Amendment on campuses today than perhaps at any time since the free speech movement. The students themselves are raising questions about free speech and does it apply to homophobic speech, does it apply to racist speech? We have to consider the student concerns but return to basic principles about what free speech means and how do we better educate students about the extent of the 1st Amendment.” — Janet Napolitano, Los Angeles Times, Oct. 26, 2017
→ Video here
- Erwin Chemerinsky
- Howard Gillman
- Barbara Boxer
- Tamara Keith
- John King
- Anne Kornblut
- Avi Oved
- Bret Stephens
- Geoffrey R. Stone
- George Will
California Law Criminalizing Teaching Trade Skills Challenged
This from J. Justin Wilson at the Institute for Justice: “Bob Smith, owner of the Pacific Coast Horseshoeing School (PCHS), filed a federal lawsuit against the State of California to vindicate his First Amendment right to teach horseshoeing to anybody who wants to learn how. The lawsuit, which was filed by the non-profit Institute for Justice (IJ), challenges a recent California law requiring that trade schools like Bob’s deny admission to any student who has not completed high school or a state-approved equivalent. He is joined in the suit by Esteban Narez, a ranch hand who wants to learn how to shoe horses at PCHS, but cannot be admitted because he never graduated high school.”
“‘Just like publishing a how-to book or uploading an instructional video to YouTube is protected by the First Amendment, so is teaching,’ said Keith Diggs, an attorney at the Institute for Justice, which represents Bob and Esteban. ‘By limiting who Bob is allowed to teach and what Esteban is allowed to learn, California has not only harmed the students most in need of an education, but also violated their First Amendment rights.'”
→ Legal complaint here
Cato Study: “The State of Free Speech and Tolerance in America”
This from Emily Ekins over at the Cato Institute:
Americans Say Political Correctness Has Silenced Discussions Society Needs to Have; Most Have Views They’re Afraid to Share
Nearly three-fourths (71%) of Americans believe that political correctness has done more to silence important discussions our society needs to have. A little more than a quarter (28%) instead believe that political correctness has done more to help people avoid offending others.
The consequences are personal-58% of Americans believe the political climate today prevents them from saying things they believe. Democrats are unique, however, in that a slim majority (53%) do not feel the need to self-censor. Conversely, strong majorities of Republicans (73%) and independents (58%) say they keep some political beliefs to themselves.
Americans Oppose Hate Speech Bans but Say Hate Speech Is Morally Unacceptable
Most Americans (59%) think people should be allowed to express unpopular opinions in public, even those deeply offensive to other people. Forty percent (40%) think government should prevent hate speech in public. Nonetheless, an overwhelming majority (79%) agree that it is “morally unacceptable” to engage in hate speech against racial or religious groups. Thus, the public appears to distinguish between allowing offensive speech and endorsing it.
Despite this, the survey also found Americans willing to censor, regulate, or punish a wide variety of speech and expression they personally find offensive:
- 51% of strong liberals say it’s “morally acceptable” to punch Nazis.
- 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
- 51% of Democrats support a law that requires Americans use transgender people’s preferred gender pronouns.
- 47% of Republicans favor bans on building new mosques.
- 58% of Democrats say employers should punish employees for offensive Facebook posts.
- 65% of Republicans say NFL players should be fired if they refuse to stand for the national anthem.
82% Say It’s Hard to Ban Hate Speech Because People Can’t Agree On What Speech Is Hateful or Offensive
An overwhelming majority (82%) of Americans agree that it would be difficult to ban hate speech because people can’t agree what speech is hateful and offensive. Indeed, when presented with specific statements and ideas, Americans can’t agree on what speech is hateful, offensive, or simply a political opinion:
- 59% of liberals say it’s hate speech to say transgender people have a mental disorder, only 17% of conservatives agree.
- 39% of conservatives believe it’s hate speech to say the police are racist, only 17% of liberals agree.
- 80% of liberals say it’s hateful or offensive to say illegal immigrants should be deported, only 36% of conservatives agree.
- 87% of liberals say it’s hateful or offensive to say women shouldn’t fight in military combat roles; 47% of conservatives agree.
- 90% of liberals say it’s hateful or offensive to say homosexuality is a sin; 47% of conservatives agree.
→ Plus much more: Check out Cato Study here.
FIRE Report: “What Students Think about Expression at American Colleges”
- See Kelsey Naughton, ‘Speaking Freely’: Self-expression in the classroom and on campus, FIRE, Oct. 25, 2017
- Report here
Forthcoming: Book on Gawker Case
→ Ryan Holiday, Conspiracy (Portfolio, March 6, 2018)
Abstract: In 2007, a short blogpost on Valleywag, the Silicon Valley-vertical of Gawker Media, outed PayPal founder and billionaire investor Peter Thiel as gay. Thiel’s sexuality had been known to close friends and family, but he didn’t consider himself a public figure, and believed the information was private.
This post would be the casus belli for a meticulously plotted conspiracy that would end nearly a decade later with a $140 million dollar judgment against Gawker, its bankruptcy and with Nick Denton, Gawker’s CEO and founder, out of a job. Only later would the world learn that Gawker’s demise was not incidental–it had been masterminded by Thiel.
For years, Thiel had searched endlessly for a solution to what he’d come to call the “Gawker Problem.” When an unmarked enveloped delivered an illegally recorded sex tape of Hogan with his best friend’s wife, Gawker had seen the chance for millions of pageviews and to say the things that others were afraid to say. Thiel saw their publication of the tape as the opportunity he was looking for. He would come to pit Hogan against Gawker in a multi-year proxy war through the Florida legal system, while Gawker remained confidently convinced they would prevail as they had over so many other lawsuit–until it was too late.
The verdict would stun the world and so would Peter’s ultimate unmasking as the man who had set it all in motion. Why had he done this? How had no one discovered it? What would this mean–for the First Amendment? For privacy? For culture?
In Holiday’s masterful telling of this nearly unbelievable conspiracy, informed by interviews with all the key players, this case transcends the narrative of how one billionaire took down a media empire or the current state of the free press. It’s a study in power, strategy, and one of the most wildly ambitious–and successful–secret plots in recent memory.
Some will cheer Gawker’s destruction and others will lament it, but after reading these pages–and seeing the access the author was given–no one will deny that there is something ruthless and brilliant about Peter Thiel’s shocking attempt to shake up the world.
- Jared Schroeder, The Press Clause and Digital Technology’s Fourth Wave: Media Law and the Symbiotic Web (Routledge, Jan. 18, 2018
- Zachary Wood, Uncensored: My Life and Uncomfortable Conversations at the Intersection of Black and White (Dutton, June 19, 2018)
- Mike Ananny, Networked Press Freedom: Creating Infrastructures for a Public Right to Hear (MIT Press, April 6, 2018)
Back in Print
- Jean Stefancic & Richard Delgado, Must We Defend Nazis?: Why the First Amendment Should Not Protect Hate Speech and White Supremacy (NYU Press; Reprint edition, January 31, 2018)
New & Forthcoming Scholarly Articles
→ Scott Skinner-Thompson, The First Queer Right, Michigan Law Review (forthcoming 2017)
Abstract: Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the FirstAmendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the FirstAmendment’s protections for free expression and association operated as what I label “the first queer right.”
Decades before the Supreme Court would recognize the importance of equal treatment of same-sex relationships, the Court protected the ability of queer people to espouse explanations of their identities and permitted them leeway to gather together to further explore and elaborate those identities. In this way, the First Amendment served an important incubating function for the articulation of equality arguments in favor of LGBTQ individuals at the same time it also created space for greater visibility of queer people in American society.
But the First Amendment is “the first queer right” in a second sense. As this review essay argues, the FirstAmendment facilitated a more robust and wide-ranging articulation of queer identity than the more vaunted equality claims that followed. One unfortunate side effect of transitioning from First Amendment claims to equality-based claims was the narrower, straighter picture of queer people it presented. Like the doctrinal history chronicled by Ball, the narrative history of how LGBTQ rights were framed and conceptualized under the First Amendment is important to contemporary debates about LGBTQ rights because it suggests that the First Amendment may yet have important work to do on behalf of LGBTQ rights — it could still be used as a means to further expand social understandings of sexuality and gender identity, and encourage future contestation of those very same “queer” identities. In other words, the First Amendment, like the meaning of the word “queer” itself, begs for further discursive contestation.
- Jeremy Waldron, Heckle: To Disconcert with Questions, Challenges, or Gibes, SSRN (Oct. 17 2017)
- Terri Day, Speech Narcissism, Florida Law Review (forthcoming 2017)
New & Notable Blog Posts
- Eugene Volokh, UCLA backs down in security fee controversy over Ben Shapiro talk, The Volokh Conspiracy, Oct. 30, 2017
- Jonathan Adler, Whatever happened to Michael Mann’s defamation suit? (2017 edition), The Volokh Conspiracy, Oct. 28, 2017
News, Editorials, Op-eds, Blog Posts
→ Tim Wu, How Twitter Killed the First Amendment, New York Times, Oct. 27, 2017 (“In this age of “new” censorship and blunt manipulation of political speech, where is the First Amendment? Americans like to think of it as the great protector of the press and of public debate. Yet it seems to have become a bit player, confined to a narrow and often irrelevant role. It is time to ask: Is the First Amendment obsolete? If so, what can be done?”)
- Social Media Giants Testify Before Congress, First Amendment Watch, Oct. 31, 2017
- ABC Settles “Pink Slime” Defamation Suit, First Amendment Watch, Oct. 27, 2017
- Andrea Seastrand, Free speech crisis on college campuses threatens First Amendment, San Luis Obispo Tribune, Oct. 27, 2017
- Brian Buchanan, Threat to NBC license fails First Amendment test, The First Amendment Encyclopedia, Oct. 16, 2017
Video of Senate Hearing on Free Speech on Campuses
→ U.S. Senate Video here
→ See Tyler Coward, Senate hearing makes it clear: There is bipartisan support for free speech on campus, FIRE, Oct. 27, 2017 (Last week “the Senate Committee on Health, Education, Labor, & Pensions held a hearing called “Exploring Free Speech on College Campuses.” Providing testimony before the committee were Robert Zimmer, president of the University of Chicago; Nadine Strossen, New York Law School professor, former president of the ACLU, and current member of FIRE’s Advisory Council; Richard Cohen, president of the Southern Poverty Law Center; and Allison Stanger, the Middlebury College professor injured in a violent campus protest in March.”
→ See also FAN 167.3: Campus Speech Debate Continues: Enter Nadine Strossen — Senate Testimony (8 Points)
100 Years Ago Today: National Civil Liberties Bureau Reports Government Censorship
This from Today in Civil Liberies History: The National Civil Liberties Bureau (NCLB) on this day sent a report to its members on the increasing government censorship of dissent against American participation in World War I. The NCLB began as a committee of the American Union Against Militarism (AUAM) in April 1917, became an independent organization on July 4, 1917, and was devoted to fighting the suppression of free speech and providing assistance to young men seeking conscientious objector status during the war.
Because of its criticisms of government policy, it too was a victim of the suppression of dissent during the war. Its publications were barred by the U.S. Post Office in the summer of 1917. In the letter to its members on this day, it apologized to its members, explaining why they “haven’t heard from us.”
Military Intelligence began spying on the NCLB in 1918 (see March 6, 1918), and on August 30, 1918, the Justice Department raided its offices and seized its papers. For a few weeks thereafter, it appeared that leaders of the NCLB might be prosecuted under the Espionage Act. They were not, and World War I ended that November.
On January 19, 1920, Roger Baldwin reorganized the NCLB into the American Civil Liberties Union (ACLU).
→ Learn more about the Civil Liberties Bureau and the founding of the ACLU: Samuel Walker, In Defense of American Liberties: A History of the ACLU (1990)
2017-2018 Term: First Amendment Free Expression Cases
- Janus v. American Federation of State, Municipal and County Employees
- Masterpiece Cakeshop v. Colorado Civil Rights Commission
Pending: Cert. Petitions
- Minnesota Voters Alliance v. Mansky
- Shepard v. Florida Judicial Qualifications Commission
- Tobinick v. Novella
- Lozman v. City of Riviera Beach, Florida
- Harris v. Cooper
- National Institute of Family and Life Advocates v. Becerra
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Connecticut v. Baccala
- Berninger v. Federal Communications Commission
Free-Speech Related Cases: Cert. Granted
- Carpenter v. United States (Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.)
Free-Speech Related Cases: Cert. Denied
- MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
Next Secheduled FAN #168: Wednesday, November 8, 2016