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Tennessee Law Review

Document Type

Article

Abstract

All laws discriminate. Some discriminate in ways that are innocuous (like driving on the right side of the road). Others result in discrimination that is invidious (like segregation laws). And still others, like public accommodations laws, are meant to preclude discrimination against certain groups of individuals. Such antidiscrimination laws also discriminate, but they generally do so against offensive or undesirable conduct, which is unprotected under the Constitution. But what happens when antidiscrimination laws are applied to the expression of individuals or for-profit businesses? In particular, what happens when a state attempts to require a for-profit business to design and create expressive works that foster or promote a message with which the business and its owners disagree? At that point, antidiscrimination laws collide with the Supreme Court's laissez-faire approach to the marketplace of ideas, which eschews virtually all governmental regulation of free speech. Laws meant to preclude offensive and discriminatory conduct run into a constitutional provision meant to protect "offensive" and "even hurtful" speech.

Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Comm'n, requires the United States Supreme Court to consider this intersection of antidiscrimination laws and the broad protection afforded speakers under the First Amendment. As the scope of public accommodations laws has grown-in terms of both the types of entities classified as public accommodations and the number of groups protected from discrimination-the possibility for conflict with First Amendment speech rights has increased. In several high profile cases across the country, states have sought to apply their antidiscrimination laws to bakers, photographers, and florists who, based on their sincerely held religious beliefs, declined to create custom wedding cakes, wedding albums, and floral arrangements for same-sex weddings. The lower courts considering these cases have denied that the First Amendment safeguards the creative and expressive works of for-profit businesses from public accommodations laws for two primary reasons: (1) expressive businesses do not engage in speech when they offer their services to the public and (2) the Court's compelled speech cases, such as Hurley and Rumsfeld, do not require courts to exempt such businesses from antidiscrimination laws.

This article contends that the lower courts are wrong on both counts. The First Amendment is not limited to verbal speech or particular mediums of expression. Ornately decorated wedding cakes readily fit within the Court's broad view of protected expression, being designed to convey the importance and beauty of the event. Under Wooley, this is true even if the message is viewed as the speech of the couple (and not that of the bakery) because the First Amendment protects the right of businesses and individuals "to refuse to foster ... an idea they find morally objectionable." Moreover, the lower courts misinterpret the Supreme Court's compelled speech and expressive association cases. Hurley establishes that public accommodations laws must yield to the First Amendment when they are applied in such a way as to violate a speaker's "autonomy to choose the content of his own message." The Court's expressive association cases confirm this result, drawing on Hurley to conclude that antidiscrimination laws cannot force an expressive association or a speaker to propound a view with which it disagrees. As a result, this article argues that because the expression of for-profit businesses falls within the marketplace of ideas, the First Amendment prevents the government from forcing expressive businesses to choose between engaging in expression with which they disagree, or remaining silent, thereby foregoing the opportunity to convey their desired message.

Publication Date

2018

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