By MIKE MANNO
The First Amendment guarantees freedom of speech, right? Well, mostly, but we’ll deal with the exceptions another time. What concerns me this week is whether there is a corresponding right not to speak, and, if so, what constitutes actual speech, and how far does this go?
The courts have long held that speech need not be verbal, or, for that matter, contain words. It can be symbolic, such as wearing a black armband to protest the Vietnam War. It can be vulgar, pornographic, and can even take the form of an inanimate object or a piece of art. So since the government cannot, in general terms, prohibit the exercise of free speech, even in symbolic terms, can the government force you to speak against your will?
Generally the government may not require you to convey a message against your will. Generally. For example, New Hampshire’s state motto is “Live Free or Die,” and state law required license plates to be embossed with the motto. State law also made it a misdemeanor to cover or obscure the plate.
Back in the late 1970s, a Jehovah’s Witnesses couple, George and Maxine Maynard, objected to the motto, claiming it violated their religious, moral, and political beliefs. After being convicted several times for covering the motto, the Maynards ended up before the U.S. Supreme Court which ruled in favor of George and Maxine.
“A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind’,” the court said.
In determining that New Hampshire’s interest in having the motto displayed was not “sufficiently compelling” to enforce the law against the Maynards, the court, quoting an earlier line of cases, stated, “Even were we to credit the State’s reasons and ‘even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved’.”
In legal parlance, the state needed a “compelling state interest” to control the Maynards’ free speech rights, and if the state did articulate such an interest, it must proceed in the narrowest, or least restrictive, manner possible.
In the 1990s the issue of LGBT groups marching — as supporters of the LGBT agenda — in Boston’s St. Patrick’s Day Parade went before the Supreme Court. Massachusetts’ lower courts had held that the state’s public accommodation law prohibiting discrimination on the basis of sexual orientation applied to the parade organizers. Thus the state courts ruled that although the law did not mandate the inclusion of the LGBT groups, it did prohibit discrimination against them and any infringement on the parade sponsors’ right to expression was only “incidental.”
The U.S. Supreme Court reversed, holding this type of parade is a form of “protected expression” because it is making a public statement of belief. The state court’s interpretation, therefore, violated the parade organizers’ free speech rights since the inclusion of the LGBT groups forced the parade sponsors to alter or compromise their message.
These cases follow in a line from West Virginia v. Barnette, a 1943 case in which Jehovah’s Witnesses parents challenged a state law that made schoolchildren salute the flag and recite the Pledge of Allegiance. Reversing its own holding of three years earlier, the court stated:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or to force citizens to confess by word or act their faith therein.”
Now enter the new world of political correctness and the newly articulated right of the courts to change the definition of marriage so as to allow same-sex couples (and perhaps multi-partners — see last week’s column about that) to enter into matrimony and we are seeing an apparent roll-back of the First Amendment rights not to speak.
On September 20 a federal district court in Minnesota ruled that Carl and Angel Larsen, who own a videography business, must use their talents to serve same-sex couples in making wedding videos if they provide that service for traditional marriage. To do otherwise would violate Minnesota’s public accommodation law. According to the court:
“The Larsens want to create films that will be played at weddings, published on their website, and shared via social media to tell a story of love, commitment, and vision for the future that encourages viewers to see biblical marriage as the sacred covenant God designed it to be. But if they do so, [the state will] require that they also tell stories promoting other types of marriage, including same-sex marriage, in the same way and through the same channels.”
The court further stated, “As an initial matter, the Larsens plan to post language on their website stating that they will not create wedding videos for same-sex couples. To the extent the Larsens argue such a statement is protected by the First Amendment, and thus the operation of the [law] would unconstitutionally curtail such speech, the Court finds there is no constitutional problem.”
The court went on to rule against the Larsens. Their attorneys at the Alliance Defending Freedom have stated that they will appeal the ruling.
So, are the Larsens being treated differently than in the preceding cases? Before you answer, consider a few other well-publicized cases:
In Washington State a local florist, Barronelle Stutzman, owner of Arlene’s Flowers, refused to arrange flowers for a same-sex wedding. The client was a regular at Arlene’s Flowers and Barronelle knew the man was a homosexual. That did not stop her from selling him flowers, but when he asked for arranged flowers for his wedding, she declined, but did offer to sell him flowers that he could arrange himself.
As a result of the “emotional toll” this took on the client, he scaled back his wedding plans, fearful, he said, that other businesses would refuse him service and that the wedding might attract protesters such as the Westboro Baptist group.
So he did the All-American thing: He sued Arlene’s Flowers for violation of Washington’s public accommodation law, calling this sexual orientation discrimination. Barronelle replied that by forcing her to arrange flowers for the wedding she would be using her “imagination and artistic skill to intimately participate in a same-sex wedding ceremony,” thus forcing her to endorse a message with which she disagreed.
The Washington courts ruled against Arlene’s Flowers, holding that the floral arrangements were not “inherently expressive” and thus did not constitute compelled speech.
Earlier, in a highly publicized case from New Mexico, photographer Elaine Huguenin refused to photograph a same-sex “commitment ceremony” (note this was before either New Mexico or the U.S. Supreme Court recognized same-sex marriage), stating that she did not want to use her artistic expression to communicate a message at odds with her belief.
The New Mexico Supreme Court dismissed Elaine’s concerns and found that she had violated that state’s version of the public accommodations law: “[T]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of [the law].” This was, the court said, the price Elaine had to pay for her citizenship. The U.S. Supreme Court declined to take the case in April of 2014.
This case was followed by any number of other cases dealing with bakers, wedding calligraphy, and purveyors of websites. But the one that has drawn the most interest is from a baker in Colorado, Jack Phillips, who operates Masterpiece Cakeshop in Lakewood. Same story as in the above cases: Same-sex couple asked for a wedding cake, Phillips refused on religious grounds, and the case went to the state court of appeals where Phillips lost.
The difference in this case is that the U.S. Supreme Court has agreed to hear it. The application to hear the case, called a writ of certiorari, was filed in July of 2016 and went before the judges in at least 18 separate conferences until the court finally granted the application last June shortly after Neil Gorsuch was confirmed and took his seat on the court.
Also noteworthy, Barronelle Stutzman has also filed an appeal with the U.S. Supreme Court and most court watchers expect the court to grant certiorari and combine it with Masterpiece Cakeshop which might put an end to this form of “forced speech.”
However, before anyone gets too excited, we need to look at these forced speech cases and what exactly was being forced. In the earlier Live Free or Die case the state was mandating that the state’s motto be displayed to the public by the state’s drivers. In the parade case the parade was being protected from being forced to publicly communicate a message that ran against its belief. In the school case the children were being forced to recite a pledge with which they disagreed.
In all these cases — and others too numerous to mention here — the court found that the objectors were being forced to either publicly adopt a message that they found repulsive and that the force came from the state.
With the bakers, florists, photographers, and others, the common thread is that they are not being forced to publicly affirm the message their products might carry. In other words, they are being asked to provide a service that does not convey to the public any message other than that which the client is articulating. No one, the argument goes, would believe that the cake maker supports or encourages same-sex weddings.
And, the argument goes, the license plate and other cases involve the government directly telling a person or organization what message they must convey — not so with public accommodation laws which are neutral laws of general applicability.
Of course that begs the question of what government action is. Can it be construed as judicial enforcement of public accommodation laws? And if so, what about the printer asked to print KKK flyers? Can that printer refuse? Similar cases have held both yes and no, so it seems that the Masterpiece case will either be decided on narrow grounds upholding the business man’s right to his religious conscience, or the wider ruling that public accommodation laws do not force speech.
Time will tell, but I think the court’s nearly one-year wait until Justice Gorsuch’s presence to accept the case is a tip that it will lean in favor of religious liberty.
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