Florists’ free speech: Liberals in Tennessee appear to be making the case for conservative justices

Alex Vaughan and Quinn Kiesow are florists on a mission. In establishing the FLWR Shop in Belle Meade, Tenn., they announced that they intended to be “the very best flower shop, not just in Nashville, but well, ever!” It appears, however, that that their “passion for unique and elegant flowers” does not extend to Republicans.

The owners are at the center of a national controversy after refusing to provide decorations for a GOP event featuring former President Donald Trump, former Vice President Michael Pence, and other Republicans. They further urged other businesses to deny future services to the Republican Party over gun control.

Some liberals are ecstatic and heaped praise on the shop.

For many, however, this is a rather incongruous arrangement. Many liberal pundits oppose religious businesses like bakeries in refusing to serve same-sex weddings and oppose the Supreme Court’s recognition of free speech rights for businesses generally. Indeed, if liberals now favor such denials of service for political or religious reasons, they are going to love what is coming in a case called 303 Creative v. Elenis.

Vaughan and Kiesow “immediately declined” service for the upcoming Republican National Committee (RNC). While they said that they “respect” the views of their conservative and Republican customers, they insisted that supplying flowers for the GOP event was “beyond our comfort level,” particularly after the recent shooting at the Christian Covenant School.

I entirely support them both — not because I agree with their view of conservatives or Republicans; rather, I have long maintained that there is a free speech right for businesses to decline to create expressive products for some customers based on political or religious objections.

For years, the courts have struggled with this issue with bakers, photographers, and other businesses refusing to create products for same-sex weddings. Five years ago, in the Masterpiece Cakeshop case, a baker was found to be in violation of the Colorado Anti-Discrimination Act for refusing to make a wedding cake for a same-sex couple due to his religious objections.

The court largely punted the case on narrow grounds.

For years, I have argued that these prior cases wrongly sought to resolve the conflict under the religious clause. In my view, these really are free speech cases.

You can call 303 Creative the unfinished Masterpiece: Lori Smith, a graphic artist declined to provide website design services to couples celebrating same-sex marriages on religious grounds. After she lost before Tenth Circuit, she brought a challenge to the Supreme Court under both the religious and free speech clauses. However, the court accepted the case only to argue the free speech grounds — raising the likelihood of a major free speech case in the making.

Businesses can be sanctioned for refusing to sell pre-made or non-expressive products to customers based on their race or status. However, these cases deal with the refusal to create expressive products to support ceremonies or events that violate a person’s religious or political views.

In my view, a Jewish baker should have a right to refuse to make a Mein Kampf cake, and an Black baker should be able to decline a KKK cake. They are all exercising their free speech rights. While they cannot refuse to sell pre-made products, these businesses cannot be compelled to speak in ways that violate their beliefs.

That is why I support this flower shop.

However, the test of free speech principles is their application to those with views that you oppose. That is one test that these supporters appear unwilling to meet. Indeed, many on the left have long denounced the Supreme Court’s decision in Citizens United v. FEC where the Court recognized that businesses have free speech rights to contribute to elections.

Notably, in the appellate court ruling in 303 Creative, the Tenth Circuit adopted a monopoly theory for speech compulsion. The Tenth Circuit faulted Smith for withholding her unique abilities as a type of speech monopolist. Thus, those refusing to speak in violation of their values were treated bizarrely like little Andrew Carnegies limiting speech by not speaking. 

As for her own views, the Tenth Circuit effectively shrugged and held that “[e]liminating … ideas is [the law’s] very purpose.” The court held that it was constitutional to “eliminate” Smith’s religious views against same sex marriage in her own business.

Of course, the GOP could insist that Vaughan and Kiesow are acting as monopolists in withholding the skills of “the very best flower shop, not just in Nashville, but well, ever!”

The alternative is to leave such matters to the market. It is doubtful that many conservatives or Republicans will relish buying flowers from the FLWR Shop. In the same way, many will not likely seek websites from Smith due to her religious beliefs. Both businesses will have to pay the price for their respective views.

Rank and file liberal responses for the FLWR Shop have been a steady stream of “bravo” and “brilliant” accolades. With an opinion expected in a matter of weeks in 303 Creative, we will see if the same accolades are forthcoming if the court (as some of us hope) reaffirms the free speech rights of florists, bakers, photographers, web designers and others. 

In the end, the GOP can probably do without the displays from “the best flower shop” more easily than the flower shop can do without free speech. The question is whether recognizing the free speech rights of Christian businesses will prove “outside the comfort zone” for those currently cheering the FLWR Shop.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.