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Symposium: Anti-discrimination laws do not compel commercial-merchant speech

Tobias Barrington Wolff is Professor of Law at Penn Law. He served as lead appellate counsel for Vanessa Willock in Elane Photography, LLC v. Willock, in which the Supreme Court declined to review a ruling by the New Mexico Supreme Court that a photography studio violated the state’s anti-discrimination laws when it refused to photograph a same-sex commitment ceremony.

One question lies at the heart of the First Amendment argument that Masterpiece Cakeshop is advancing before the Supreme Court: When a customer buys goods or services from a business that operates in the general marketplace, whose message (if any) is communicated by the item or service? Masterpiece’s argument depends on the proposition that the company, and not the customer, is the speaker who owns the message. If that proposition fails, then the speech clause plays no role in this case. And as I will explain, that proposition does fail.

To start, we must take stock of how a public-accommodation law operates. Anti-discrimination laws are content-neutral, as First Amendment doctrine uses that term. They do not target particular messages or expressive acts, and they do not regulate with reference to the content of expression. Neither do they target only businesses that sell goods and services that include some creative or artistic element. On its face, an anti-discrimination law like Colorado’s has nothing to do with expression. Rather, the law targets commercial conduct: the decision whether to do business with a customer, and the act of discriminating against customers when turning them away.

Commercial entities do not receive special exemptions from commercial regulations simply because the goods or services they sell have an expressive component. Law firms and private schools, for example, have tried and failed to argue that the First Amendment shields them from federal anti-discrimination law. This is so despite the fact that the services they provide involve the creation of expressive work product. That fact is certainly relevant in some settings. If government sought to regulate the content of their work product directly — prohibiting law firms from making arguments that challenge the constitutionality of government programs or telling private schools what ideology they must promote in the classroom — then the First Amendment would be directly implicated. But when government tells a law firm that it may not discriminate against women in hiring and promotion, or tells a private school that it may not discriminate against black students in deciding who is eligible to enroll, both are being subjected to general regulations of commercial conduct and the First Amendment is not implicated. Discrimination in the marketplace “has never been accorded affirmative constitutional protections.

Masterpiece Cakeshop and other businesses have insisted that the goods and services they sell involve expression that is entitled to First Amendment protection. That both is true and proves nothing. Wedding photography, cake design and flower arranging do involve artistry, and that fact would protect practitioners from having the government regulate the artistic content of their work product just as it protects law firms and private schools from such content-based interference. That fact does not exempt photographers, cake designers or flower arrangers — or lawyers, or private schools — from following generally applicable commercial regulations including those relating to discrimination against employees or customers.

To circumvent this obstacle, the lawyers for Masterpiece Cakeshop have sought to frame their arguments as compelled speech. Even if an anti-discrimination law is content-neutral, they say, the law compels involuntary expression when applied to a business that sells made-to-order goods or services involving artistic skill. They argue that the creative or artistic content of their products gives these businesses a right to turn away any unwanted customer.

To determine whether this argument has any substance, we must distinguish between two lines of cases in the Supreme Court’s compelled-speech doctrine. In the first line of cases, the court has treated with particular disfavor any attempt by government to select a favored message and compel involuntary speakers to affirm or host that message. In West Virginia State Board of Education v. Barnette it was the pledge of allegiance, which the state required students to recite in school. In Wooley v. Maynard it was a patriotic motto, which the state required drivers to carry on their license plates. In Miami Herald v. Tornillo it was the response of a political candidate to unfavorable newspaper coverage, which state law required the newspaper to publish on its pages. In Pacific Gas & Electric Company v. Public Utilities Commission of California it was the newsletter of an environmental group, which state regulators required a utility company to bundle with the bills it sent its customers. In each case, government selected a favored message and mandated its dissemination. Barnette and Wooley involved the government’s own message. PG&E and Tornillo involved the message of a private speaker chosen because of its viewpoint. All involved the compelled affirmation or dissemination of a specific message chosen by government. Despite many other differences among these cases and room for disagreement about how some were decided, this basic fact lay at the foundation of each ruling.

Public-accommodation laws lack this quality altogether. Colorado has not selected a favored message and mandated its dissemination. The Colorado Anti-Discrimination Act and laws like it simply say to businesses, “Whatever goods you sell or services you offer, you must do so without discriminating against these classes of people.” The difference is fundamental. This line of cases is about prohibiting compelled orthodoxy and preventing government from conscripting unwilling people to disseminate a favored viewpoint. Masterpiece Cakeshop is neither being subjected to compelled government orthodoxy nor made the involuntary billboard for a government-chosen message.

The second line of cases relates to individual acts of expression. When a person is speaking in her own voice, engaged in expression that is invested with her own identity as a speaker, the speech clause grants her the right to control the content of that message free from government mandates. This interest, too, was at stake in Barnette, where the message chosen by the state was required to be affirmed by each individual student with a salute signifying the solemnity of the pledge. In subsequent compelled-speech doctrine, this interest has most clearly controlled the result in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston.

Hurley held that the application of a Massachusetts anti-discrimination law to a privately organized parade was a violation of the speech clause. Unlike in Barnette, Wooley, Tornillo and PG&E, the government was not mandating that anyone affirm or disseminate its chosen message. The Massachusetts law said nothing about messages. It simply required equal access to public accommodations. But the state court interpreted “public accommodation” to include a private expressive event. The Supreme Court found that this unusual extension of the public-accommodation law violated the First Amendment.

The cornerstone of Hurley was the Supreme Court’s conclusion that a parade is inherently expressive, meaning that it serves as a vehicle for communicating the message of the private parade organizer to a larger audience. Any requirement that the organizer allow unwanted parade units to march was thus a requirement that the organizer change the content of a message that he was presenting to the world as his own. It was precisely this concern that the Hurley court sought to isolate when it called a parade “inherently expressive.” The term does not simply indicate that a parade includes content that implicates the First Amendment, it indicates that a parade is an act of personal expression akin to giving a speech on a street corner. Indeed, the street-corner speaker is another trope that the Supreme Court invoked in Hurley to explain its holding. The organizer orchestrates parade units to craft his own message (whether about Irish pride or anti-government protest) and performs that message for a public audience. He is a street-corner speaker. He simply uses a different idiom to convey his message.

A business is not acting as a street-corner speaker when it sells goods and services to the general public. When a customer hires a merchant, it is not paying for the privilege of disseminating the merchant’s personal message. To be sure, some merchants provide a good or service that involves creative or artistic skill. But any message they produce as a consequence is a message chosen by their customers. Imagine a wedding photographer showing up at a customer’s wedding and saying, “Here is how you must structure your ceremony. Here is what you must say. This may be your wedding, but I am taking the pictures, so this is my message and I get to control its content.” That is not the relationship that businesses have with their customers when they sell goods and services. Hurley does not apply to commercial transactions in the public market.

Some business owners are offended when told that the skills they sell to the general public may not be refused to gay customers. But the First Amendment is not a general license for people to avoid requirements they find objectionable. Public-accommodation laws do not regulate the content of expression. They do not single out a favored message and require people to affirm or disseminate that viewpoint. And they do not hijack a street-corner speaker and demand that he include unwanted content in his private expression. The speech clause poses no obstacle to prohibitions on discrimination in the public market.

Recommended Citation: Tobias Wolff, Symposium: Anti-discrimination laws do not compel commercial-merchant speech, SCOTUSblog (Sep. 14, 2017, 10:25 AM),