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SCOTUS for law students: Splitting the free speech community

Tuesday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed that the justices are divided in their views on the conflict between the free-expression rights of a baker who refused to make a wedding cake for a same-sex couple and Colorado’s civil-rights law that protects against bias by businesses based on sexual orientation.

The Supreme Court is not alone in being divided, however. The closely watched case has also split the community of First Amendment lawyers who advocate free-speech rights in a broad range of lawsuits, friend-of-the-court briefs, scholarly articles and panel discussions.

This is unusual, although certainly not unprecedented. Political leaders, philosophers and different groups in our society often debate and disagree about the meaning of free speech and what the First Amendment covers. First Amendment lawyers, however, often tend to view issues and controversies through a similar free-speech filter.

Not so in the friend-of-the-court (or “amicus curiae”) briefs filed in the Masterpiece Cakeshop case. Among more than 100 amicus briefs filed on both sides are a handful – also on both sides – that are written by or written for recognized First Amendment experts in private practice and in law schools. This column examines some of the amicus briefs and explores the differences in their approaches.

First, it may be helpful to give a quick summary of the core arguments in the case. Lawyers for Masterpiece Cakeshop and the baker, Jack Phillips, maintain that his wedding cakes are a form of creative expression and that he cannot be compelled by the government, in this case the Colorado Civil Rights Commission, to create expression with which he disagrees. Lawyers for Colorado and for the now-married, same-sex couple, Charlie Craig and David Mullins, argue that the state civil-rights law prohibits discriminatory business practices, such as refusing to sell a cake because of disagreement with same-sex marriage. Any burden on the baker’s free speech is incidental and allowed by anti-bias laws, they maintain.

This disagreement is not surprising. What is perhaps unusual is that there are free-speech advocates on both sides.

Robert Corn-Revere is a Washington lawyer with Davis, Wright, Tremaine and one of the most active free-speech litigators in the nation. He filed a brief for a nonprofit called the First Amendment Lawyers Association. In the brief, he argued that making a custom wedding cake is creative expression that is entitled to the protection of the First Amendment. State anti-discrimination laws, Corn-Revere argued, cannot be used to compel someone to speak or to create expression against his will. “Creativity cannot be coerced,” he wrote.

Corn-Revere’s brief relies heavily on a 1995 Supreme Court decision holding that the organizers of the annual Boston St. Patrick’s Day Parade could not be forced under an anti-discrimination law to include a gay-rights group in the event. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Supreme Court ruled that the parade organizers could not be compelled, against their beliefs, to embrace the message of supporting gay rights.

Another brief, filed on behalf of 34 legal scholars (many of them highly prominent names in constitutional law and specifically the First Amendment), argues, “This Court has refused to allow an unquestionably legitimate antidiscrimination law to be applied in a way that would seriously intrude on the freedom of expression.” Written by David Langdon, a lawyer in West Chester, Ohio, the brief says Colorado and the same-sex couple seek to violate one of the most famous axioms in First Amendment history, the statement that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The much-quoted line comes from West Virginia State Board of Education v. Barnette, a 1943 decision that said individuals could not be forced to recite the Pledge of Allegiance and to salute the flag against their beliefs.

Among those on Langdon’s brief, mostly conservatives, are former federal appeals court judge and now Stanford Law School professor Michael McConnell; Chapman Law School professor Ronald Rotonda, who has produced decades of constitutional law casebooks; Michael Stokes Paulsen of the University of St. Thomas, another constitutional-casebook author; and Robert Nagel, emeritus professor at the University of Colorado Law School and author of several books on constitutional law, to mention just a few.

The idea that government may not compel individuals to speak is clearly established in First Amendment law, but one question that divides First Amendment experts is whether this case is an example of compelled speech.

The experts on the side of the state and the same-sex couple, who argue that compelled-speech principles are not implicated in this case, are as well-regarded in the fields of constitutional law and the First Amendment as those on the side of the baker. One brief was written by Walter Dellinger, former acting solicitor general, emeritus Duke University Law professor and a partner in the Washington office of O’Melveny & Myers. Dellinger’s brief represents various First Amendment experts: Floyd Abrams, a premier litigator; Vincent Blasi, Columbia University Law School professor; Burt Neuborne, onetime legal director of the American Civil Liberties Union and New York University Law School professor; and Geoffrey Stone, University of Chicago Law School professor, among others.

Dellinger casts the case in a very different light, arguing that it is not really about freedom of speech at all. “Colorado does not regulate the creation of messages,” Dellinger writes. “The Colorado statute … regulates the conduct of selecting customers, and does so well within the parameters of First Amendment protections.” “Petitioners have a First Amendment right to pick their message,” asserts Dellinger, “but not to choose their customers based on sexual orientation.”

Another brief on the side of the state and the couple was filed by professor Steven Shiffrin, who has taught courses on the First Amendment at Cornell Law School for decades and who wrote one of the leading First Amendment casebooks. Like Dellinger, Shiffrin argues that the case involves “discriminatory conduct,” not expression. Noting that the Colorado anti-discrimination law applies not just to the baker, but to hair stylists, chefs, bartenders and more, Shiffrin writes: “To stretch the First Amendment to cover this wide range of goods and services would threaten civil rights law not only with respect to sexual orientation, but also with respect to race, religion, and gender.” Shiffrin maintains that this is not a compelled-speech case because the baker was not required to convey any message.

How will the Supreme Court evaluate these diametrically opposed views of what constitutes speech and whether anti-discrimination laws may be valid even if they burden some amount of free expression? As with many of the court’s close cases, it seems that Justice Anthony Kennedy holds the key to resolving that dilemma. There are plenty of amicus briefs to offer him advice. With First Amendment lawyers writing passionately on both sides, however, it is difficult to predict whether and in what direction the handful of briefs by free-speech experts will sway him.

Recommended Citation: Stephen Wermiel, SCOTUS for law students: Splitting the free speech community, SCOTUSblog (Dec. 8, 2017, 12:20 PM),