The Cake Case Presents an Interesting Question of Speech or Conduct

Is a wedding cake more speech or conduct?  Or stated another way is the act of creating a wedding cake expressive enough to trigger First Amendment review?   That question is central to the most highly watched First Amendment case before the U.S. Supreme Court – Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the wedding cake case.

Masterpiece Cakeshop and its owner Jack Phillips contend that the application of the public accommodation law to force him to bake a case celebrating a same-sex violates his First Amendment freedoms.  The state of Colorado argues it has a compelling interest of the highest order to protect individuals, such as Charlie Craig and David Mullins who sought a wedding cake from Masterpiece Cakeshop, from discriminatory conduct.

During oral argument, Justice Sonia Sotomayor seemingly focused on the discriminatory conduct rather than any expressive component used in baking a cake.  She stated that “if you want to be a part of our community, of our civic community, there’s certain behavior, conduct — you can’t engage in.”   Colorado and the same-sex couple denied a wedding cake emphasize the state is enforcing its public accommodation against the conduct of someone for not selling a product.

Some in the First Amendment community support this view.  They ask if a wedding cake is speech, then what about a floral arrangement, a fancy hairstyle, or beautiful jewelry?   “In the absence of a specific message affixed to a cake, baked products are not now and never have been expression within the meaning of the First Amendment,” writes Steven Shiffrin in his amicus brief for Freedom of Speech Scholars.

Brianne J. Gorod, in an amicus brief on behalf of First Amendment Scholars, seemingly advances a similar view.  She emphasizes that the Colorado law policies discriminatory conduct, not any messages associated with a cake.  The First Amendment does not give—and has never been understood to give—commercial businesses the right to violate public accommodations laws that prohibit discrimination.”

Others emphasize the creative process that Phillips undertakes to produce his wedding cakes.  34 Legal Scholars, in an amicus brief authored by David R. Langdon, writes that “this lawsuit is little more than an effort to force Phillips to use his artistic gifts to celebrate same-sex weddings, contrary to his convictions.”

It remains to be seen how the Justice will navigate the speech-conduct issue.  In Dallas v. Stanglin (1989), the Court wrote that “[i]t is possible to find some kernel of expression in almost every activity a person undertakes – for example, walking down the street or meeting one’s friends at a shopping mall – but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”   The Court said this in finding that social hall recreational dancing wasn’t expressive enough to trigger full free-speech review.

Other times the Court has used the so-called “Spence test” from Spence v. Washington (1974), which asks (1) was there an intent to convey a particularized message and (2) if so, would that message be reasonably understood by others.

The challenging case has attracted more than 100 amicus briefs and has made front-page headlines.  The case, as constitutional law expert Steve Wermiel has explained, divided the First Amendment community.

In confronting that challenge, the Justices hopefully will clarify when something qualifies as speech.

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