By: Lisa Hoover

As a fundamental right, the First Amendment has the power to impact almost every area of our lives. This is evident in two cases regarding compelled speech, currently making their way to the United States Supreme Court – one related to abortion and the other related to cake baking, yet both tied to the First Amendment. Both could have far-reaching implications for how the First Amendment protects speech.

The first case, National Institute of Family & Life Advocates v. Becerra, asks whether the disclosures required under the California Reproductive FACT Act violate the free speech clause of the First Amendment. The second case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, asks whether using Colorado’s public accommodations law to compel a cakeshop to create expression in the form of a cake for a same-sex wedding violates the free speech and/or free exercise clauses of the First Amendment.

FACT Act

The abortion case addresses the 2015 Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act, known as the Reproductive FACT Act. The California law was intended to address concerns that nonprofit pregnancy crisis centers affiliated with groups opposed to abortion were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their pregnancy options.

The act requires that nonprofits licensed to provide medical services must post notices to inform patients that free or low-cost abortions are available and provide phone numbers for state agencies. Centers that are not licensed to provide medical services must include disclaimers in their advertisements that their services do not include medical assistance (Howe, 2017).

The centers sued, arguing that the law violates the First Amendment because the requirement that they post signs regarding abortions contradicts their anti-abortion message. They also argue that the law singles them out based on their views. Likewise, they argue that the advertising requirement would make it difficult for the centers to advocate their pro-life message and that the centers are compelled to begin their relationship with the client with an unwanted message that overrides their intended message. The U.S. Supreme Court is expected to review the case early in 2018 (Howe, 2017).

The Cake

In 2012, Charlie Craig and David Mullins attempted to order a cake for their wedding from Masterpiece Cakeshop. The cakeshop’s owner, Jack Phillips, refused to make the cake because it conflicted with his religious belief that marriage should be confined to heterosexual couples. Colorado’s anti-discrimination law bars businesses that sell to the public from discriminating based on sexual orientation. The couple reported the incident to the Colorado Civil Rights Division, and the agency initiated proceedings against Phillips. After some legal wrangling, the case has arrived at the U.S. Supreme Court, which agreed to hear the case in June 2017 and heard arguments Dec. 5, 2017 (Howe, 2017).

Phillips argues that his wedding cakes are a form of creative expression protected by the First Amendment which, he says, prevents the state from requiring him to engage in speech via a cake design that conflicts with his religious beliefs (Howe, 2017).

The Issues – Compelled Speech:

Interestingly, both petitioners argue that they are being compelled to speak in a way that violates their beliefs. We usually think of the First Amendment in a context where someone is being prevented from speaking, but these cases deal with a situation where they are, arguably, being forced to speak. This is an area where cases can go either way; sometimes compelled speech is constitutional, sometimes it is not.

The court has struck down compelled speech requiring the saluting of the flag (West Virginia State Board of Education v. Barnette), requiring a motto on a license plate (Wooley v. Maynard), and requiring a newspaper to publish an advertisement under a “right of reply” statute (Miami Herald v. Tornillo). In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the court ruled that requiring private citizens organizing a parade to include a group expressing a message the organizers do not wish to convey violates the First Amendment.

On the other hand, the court has upheld compelled speech in situations such as a mandatory university fee that supports groups with which some students disagree (Board of Regents of the University of Wisconsin System v. Southworth), mandatory fees on agricultural products to support advertising (Johanns v. Livestock Marketing Association), and requiring a cable system to carry local stations (Turner Broadcasting v. FCC).

Some important points from these cases that might be relevant to our current cases:

• In the Johanns case, the court noted that while compelled funding of private speech raises First Amendment concerns, compelled funding of government speech generally does not.
• The Turner Broadcasting case found an “independent interest in preserving a multiplicity of broadcasters.”
• In University of Wisconsin, the court upheld the mandatory fee where it was “used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral,” and noted that the fee cannot “prefer some viewpoints to others.”
• Wooley found that requiring drivers to display the state motto required them to “use their private property as a ‘mobile billboard’ for the state’s ideological message” and noted that the interest in requiring the motto did not outweigh the First Amendment interest not to foster an idea “they find morally objectionable.”
• The Tornillo case seemed to rely in large part on the freedom of the press under the First Amendment, not a more individualized right of free speech.
• In the Barnette case, the court found that requiring schoolchildren to salute the flag was a form of utterance, and that the “compulsory unification of opinion” was contradictory to First Amendment values.
• In the Hurley case, the court held that requiring private organizers to convey a message they do not want violates the “fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message.”

The Cake

Given the facts in these cases and the precedent cases above, it seems likely that the threshold issue in the case of the cakeshop will be whether the act of baking and decorating a cake is speech to begin with. The court’s oral argument makes it clear that there is some debate on this point.

Assuming it is speech, will the court consider this compelled speech that violates the First Amendment? The University of Wisconsin case might be on point, in that it cites the concept of “viewpoint neutral” speech requirements. One could argue that they are required to make cakes for everyone regardless of sexual affiliation, so this is viewpoint neutral. However, Phillips argues that under the law he could refuse to make a cake opposing same-sex marriage (Howe, 2017). If this is true, is it really viewpoint neutral?

The Barnette case seems on point, at least on the surface. However, it could be distinguished on the grounds that the schoolchildren were required to be present, whereas Phillips has chosen to “put himself out there” by opening a business. In addition, do we have “compulsory unification of opinion” here? He’s welcome to make his own views clear in other contexts, so (arguably) he isn’t necessarily being forced to embrace a particular view – just to help someone else embrace it.

The Hurley case also seems on point at first glance, but could be distinguished. As Justice Ginsburg points out during the oral arguments, in the case of a parade, the parade itself is the speech. Here, the speech is arguably the wedding ceremony, not the cake.

FACT Act

Here there is really no question that speech is involved, so the question becomes whether this is compelled speech that violates the First Amendment.

Here the Johanns case might be good precedent. The issue in that case was that The Beef Promotion & Research Act required cattle producers to pay a fee for beef advertisements on behalf of the cattle industry as a whole, with which some producers disagreed. This is, arguably, similar in the sense that the government is requiring a group to support speech with which they disagree.

However, it also could be distinguished on the grounds that in this case they aren’t being required to pay a fee that will go only in part toward external speech with which they disagree, they are required to display the speech, with which they disagree entirely, in their organization itself.

While Turner Broadcasting seems different on the surface, might the “independent interest” logic also apply here? Doesn’t the government have an “independent interest” in making sure medical consumers are well informed of all options?

One could argue that the government’s message is ideological in that it “supports” abortion. If you buy this argument, both University of Wisconsin and Wooley might be applicable in that the government’s position is not view-point neutral, and it supports the state’s particular ideological message.

On the flip side, though, if you believe this is a view-point neutral message in that it just wants consumers to have all relevant medical information and is not pushing abortion, but rather making sure that the patient knows all choices, these cases could be looked at as supporting the government’s position. Similar arguments could be made regarding the Barnette case.

Hurley could also be seen as on point, in that these are private groups that are being forced to convey a message that they do not want. However, the fact that this area involves medical counseling clouds that issue – there is certainly precedent to support the idea that medical providers or those in the medical field have certain obligations to patients, such as honesty and a standard of care, that trumps the right to say whatever you want.

What Does it All Mean?

If the court sides with Phillips or the clinics in one or both of these cases, it could have interesting and far reaching implications for the First Amendment.

In the Phillips case, a holding for Phillips would potentially protect many people who wish to deny services to gay couples – the justices in the oral arguments also asked about hair dressers and make up artists, for example. And, of course, the case could be expanded to include denying service to other groups with which these providers disagree.

On the flip side, a holding against Phillips could require business owners to provide services to groups or individuals with whom they disagree or whose activities they do not wish to support.

In the case of the clinics, there is an interesting potential wrinkle here. While this law seems designed to counter-act an anti-abortion message, other states have laws that seem to support a pro-life message, such as states that require “anti-abortion counseling laws.” These laws differ from state to state, but generally require what many consider an anti-abortion message. For example, some require doctors to tell patients (regardless of whether the doctor agrees) there is a link between abortion and breast cancer or abortion and mental health problems or that fetuses can feel pain (Lithwick & Stern, 2017).

If the California law falls or stands, it could have significant implications for the future of these laws as well. After all, what is good for the goose is good for the gander. Therefore, it’s also worth noting that in 1992 in Planned Parenthood v. Casey the Supreme Court ruled that states can compel physicians to provide “truthful, non-misleading information” to women seeking abortions. Does this apply to the FACT Act? If so, does it also apply to the anti-abortion counseling laws? I guess we’ll find out, at least with regard to the FACT Act.

What Will Happen? 

The court can rule for both plaintiffs, rule against both, or split the baby. If they decide to do the latter, I would anticipate they would rule for Phillips but against the plaintiffs in the FACT Act case, citing the greater importance of providing correct information in the medical context.

As noted, this would be at best a half-triumph for pro-choice groups, given that it might also support other laws that are generally considered anti-abortion.

Regardless of what the court decides, these cases represent a potential for significant shift in the way we view compelled speech under the First Amendment.

References:

Amy Howe, Wedding cakes v. religious beliefs?: In Plain English,SCOTUSblog (Sep. 11, 2017, 11:59 AM), http://www.scotusblog.com/2017/09/wedding-cakes-v-religious-beliefs-plain-english/

Amy Howe, Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English, SCOTUSblog (Dec. 11, 2017, 2:10 PM), http://www.scotusblog.com/2017/12/justices-take-first-amendment-challenge-state-abortion-disclosure-laws-plain-english/

“Board of Regents , University of Wisconsin System v. Southworth.” Oyez, 18 Dec. 2017, www.oyez.org/cases/1999/98-1189.

Dahlia Lithwick & Mark Joseph Stern, Be careful what you sue for, Slate.com (Nov. 13, 2017 1:20 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/11/abortion_foes_latest_supreme_court_challenge_could_turn_out_badly_for_them.html

“Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.” Oyez, 18 Dec. 2017, www.oyez.org/cases/1994/94-749.

“Johanns v. Livestock Marketing Association.” Oyez, 18 Dec. 2017, www.oyez.org/cases/2004/03-1164.

“Miami Herald Publishing Company v. Tornillo.” Oyez, 18 Dec. 2017, www.oyez.org/cases/1973/73-797.

“Turner Broadcasting System, Inc. v. Federal Communications Commission.” Oyez, 18 Dec. 2017, www.oyez.org/cases/1996/95-992.

“West Virginia State Board of Education v. Barnette.” Oyez, 18 Dec. 2017, www.oyez.org/cases/1940-1955/319us624.

“Wooley v. Maynard.” Oyez, 18 Dec. 2017, www.oyez.org/cases/1976/75-1453.

 

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Lisa Hoover is a public services librarian at Clarkson University and an adjunct professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about First Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York, with their cats Hercules and Pandora and pug-mix Alexstrasza (Alex). Email her at lhoover@clarkson.edu. Find her on Twitter @LisaHoover01.