The right to speak freely entails the right not to speak. If someone forces you to express some message of which you disapprove, that person has violated your right to freedom of speech and to freedom of conscience more broadly. The Supreme Court was right, therefore, to protect the ability of business owners to decline to create products expressing views with which they disagree. That is the issue at the heart of the 303 Creative decision.
What the critics say
Critics of the decision in effect argue that people may be forced to speak, as a condition of running a business, if someone from a marginalized group protected by anti-discrimination laws orders a product expressing some message contrary to the business owner’s beliefs.
Usually at issue are cakes or web sites or the like for gay marriages, which some religious conservatives continue to oppose. Gallup found that only 41% of weekly churchgoers “say gay marriages should be legally recognized,” while 71% of the general population do. In such cases, critics say, a business owner should not be able to decline to express the message—unless they go out of business.
The ACLU, for example, which traditionally has been a major champion of free speech, in this case argues that some speech may be legally mandated for the sake of limiting discrimination. The ACLU says in a release, “The Supreme Court held . . . that a business offering customized expressive services has the right to violate state laws prohibiting such businesses from discrimination in sales. The Court’s decision opens the door to any business that claims to provide customized services to discriminate against historically-marginalized groups. The decision is fundamentally misguided.”
Our Attorney General, Democrat Phil Weiser, said the decision “will permit businesses to turn away LGBTQ customers just by claiming that they sell expressive or artistic services. . . . The opinion represents a radical departure from decades of Court precedent and fails to uphold the principle of ‘Equal Justice for All.’ . . . . This case is not about websites or speech—but the ability of all to enter the public marketplace as equals. . . . We will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination. . . . And we will continue to fight other attempts to rollback our anti-discrimination laws.”
Representative Brianna Titone, active in the legislature’s LGBTQ caucus, said, “The decision by the Supreme Court undermines Colorado’s anti-discrimination protections, directly attacks the rights of LGBTQ Americans and allows businesses to deny services based on ‘First Amendment’ grounds to anyone due to their gender, race, religion, or who they love. The US Supreme Court has legalized discrimination and bigotry against LGBTQ people and has endangered equal protections under the law.”
Such criticisms hold either that people do not actually have a right to decline to speak in these conditions or else that their right not to speak is trumped by others’ right to engage in the marketplace on equal footing.
Misinterpreting the decision
Adding to the complexity of the discussion, both Weiser and Titone (among many others) dramatically misinterpret what the ruling says and implies. The ruling does not, as Titone says, generally allow businesses to deny service based on “gender, race, religion, or who they love.” Nor does the ruling allow a business generally to refuse to serve interracial couples, women-owned businesses, or Mormons, as Weiser claims in his release. Rather, the decision pertains only to products created to-order that express some message. That’s a small fraction of business services.
Consider the difference. Let’s say some bigoted jerk disapproved of interracial marriage. Believe it or not, there still are a few people like that (as I’ve discussed). Under the ruling, if an interracial couple went into a bakery to buy an off-the-shelf cake, the business owner could not legally decline to sell them the cake. But if the couple ordered a cake specifically to explicitly celebrate an interracial marriage, the cake baker could refuse the order on First Amendment grounds.
In his detailed review of the decision, Eugene Volokh notes the decision is “a narrow case, authorizing First Amendment defenses to only a limited set of applications of antidiscrimination law, when speech creators want to choose the particular content of speech that they seek to create.”
Even a–holes have rights
But a baker refusing to bake a cake for an interracial marriage is terrible, you’re probably thinking. I agree it is terrible. I certainly would not want to be friends or otherwise interact with such a bigot, and the public justly would excoriate the person.
But here’s the thing. If we wish to live in a free society, as opposed to a totalitarian hell-hole, the law can neither mandate everything that is moral nor forbid everything that is immoral. The purpose of government is not to make everyone be good. Rather, the purpose of government is to protect people’s rights and thereby keep the peace and allow for consensual interactions. Hence, just government plays a highly delimited role in coercing people to do what they ought—say, abide by a contract—and to refrain from what they ought not—such as assault others.
Think about it this way. Do you think cake bakers should be free to turn down an order for a cake that says “God Hates F__s,” “Satan Rules,” or “Interracial Marriage Violates God’s Will”? Hopefully you agree bakers should have that freedom. So then how can government draw a line saying business owners have a right to decline to promote certain messages and not others?
Just as the First Amendment protects the rights of bigots to publish books and the like, so it protects their rights not to express inclusive messages. In short, even a–holes have the right to freedom of speech.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
