Freedom of expression is a right the Supreme Court must uphold

Next week, cake artist Jack Phillips will ascend the steps of the U.S. Supreme Court for oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Commentary has highlighted Jack’s artistry, explained how this case transcends marriage, and discussed the impact the Court’s ruling will have on creative professionals across the country.

But what about us as a society? If the Court rules that Jack must abandon his artistic expression and conscience in order to pursue his craft, then we all will face a profound loss — the removal of freedom of expression and freedom of conscience from the public square. That possibility should chill us to the core. 

To understand how we’ve arrived at this critical moment, it’s helpful to understand from where we’ve come. Nondiscrimination (or public accommodation) laws were never intended to compel expression in violation of one’s conscience. Rather, laws like the Colorado statute Jack was accused of violating began as a means to ensure access to “certain essential goods and services” irrespective of race. Notably, the Civil Rights Act of 1964 was passed under the authority of the commerce clause, due to the impact such invidious discrimination had on interstate travel. After all, if a restaurant is unwilling to sell you food, a train is unwilling to transport you to your destination, or an inn is unwilling to provide you with lodging, traveling across state lines becomes a precarious proposition.

{mosads}Current nondiscrimination laws, however, have cast off their historical roots, not only the protected classes included, but also the types of businesses covered. For example, a District of Columbia statute now prohibits discrimination based on factors including marital status, personal appearance, family responsibilities, political affiliation, source of income, and place of residence or business, among others. New Jersey’s nondiscrimination law applies to more than fifty types of establishments, including roof gardens, bathhouses, and bowling alleys, and includes a catch-all provision encompassing “any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind.”

This expansion, while it offers some benefits, also poses some challenges. In 2000, the Supreme Court noted an increased “potential for conflict between state public accommodations laws and the First Amendment rights of organizations.” It was right, and these conflicts have brought Jack to the steps of the Supreme Court. If the Court determines that nondiscrimination laws require creative professionals not simply to serve all people (which Jack does), but also to express messages that violate their conscience, then it will have allowed state nondiscrimination laws to subjugate First Amendment rights. And it will have made Jack’s creative mind itself a public accommodation.

The impact of such a ruling would stretch beyond the confines of a state law and into our diverse national fabric, because it would undermine the core societal value of freedom of conscience and impair the foundational freedom of expression. Whether in the art studio or the corporate boardroom, when freedom of expression gives breath to conscience, it is not just for the edification of an individual, but for the enrichment of society. The examples abound.

When Ben & Jerry’s denounced the Trump administration’s executive order regarding immigration, it exercised “the right and responsibility to speak out,” and proclaimed its refusal to “sacrifice our ideals.” When Target and Starbucks took public positions in support of same-sex marriage, they did so to “directly share [their] views on this issue,” recognizing “not every decision is an economic decision.” When Amazon Studios and Netflix cut ties with The Weinstein Company and Kevin Spacey because of sexual assault allegations, they exercised their corporate conscience and took a stand against sexual harassment and abuse.

Ours is a society of diverse individuals, united not by a singular view on cultural issues, but by a singular commitment to a constitutional ideal. Consider the words of the CEO of one of the most successful companies in the world, Apple’s Tim Cook, on the topic of freedom of expression, and the role of corporate conscience in preserving that freedom:

We know that these freedoms require protection. Not just the forms of speech that entertain us, but the ones that challenge us. The ones that unnerve and even displease us. They’re the ones who need protection the most. Unpopular speech, unpopular art, and unpopular ideas … It’s no accident that these freedoms are enshrined and protected in the First Amendment. They are the foundation of so many of our rights. Which means we all have a stake, and a role, in defending them.

This is a responsibility that Apple takes very seriously. I see our work to fulfill this responsibility as twofold. First we defend, we work to defend these freedoms by enabling people around the world to speak up. And second, we do it by speaking up ourselves. Because companies can, and should have values. We have a perspective on major public issues, and we are prepared to take a stand for things that we deeply believe in.

These examples reveal what we instinctively know to be true. Conscience unexpressed is hollow; expression without conscience is empty. These freedoms are not tokens to be surrendered as the price of entry to a free society; rather, they are the mark and fruit of it. We must guard them well.

James Gottry is legal counsel with Alliance Defending Freedom, which represents Jack Phillips and Masterpiece Cakeshop.