TAR HEEL VIEW: Colorado baker asserts First Amendment right to his creative freedom

Defending free speech often means siding with scoundrels, as allowing even the shrillest voices to be muted erodes First Amendment protections for every American citizen.

It’s a position most succinctly expressed in Beatrice Hall’s wise declaration: “I disagree with what you say but will defend to the death your right to say it.”

In that spirit, civil liberties advocates should support Colorado baker Jack Phillips even if they vehemently disagree with his decision to turn away a same-sex couple who sought a wedding cake from his Masterpiece Bakeshop.

Phillips argues that using federal and state nondiscrimination rules to punish him for refusing to bake a cake for a same-sex wedding violates his First Amendment rights to free exercise of religion and freedom of speech. Crafting the sugary confection, he says, is an inherently expressive act akin to writing, painting or sculpture.

The Trump administration’s U.S. Department of Justice filed a friend-of-the-court brief supporting Phillips’ lawsuit against the Colorado Civil Rights Commission. The Supreme Court is scheduled to hear the case this fall.

“Just as the government may not compel the dissemination of expression, it equally may not compel the creation of expression,” states the Justice Department brief submitted by Acting Solicitor General Jeffrey B. Wall. “Compelling a creative process is no less an intrusion — and perhaps is a greater one— on the ‘individual freedom of mind’ that the First Amendment protects.”

If Phillips were hawking generic sheet cakes, he wouldn’t have a leg to stand on. Because he designs custom cakes for each client and hangs his reputation on the one-of-a-kind treats, he contends Colorado law forces him to provide a creative service over his personal objections. That sounds a lot like government-compelled speech, which the First Amendment forbids.

In May, a state appellate court in Kentucky agreed that a T-shirt printer could refuse to make shirts for a gay pride festival, finding that a company can’t be forced to amplify a social or political message it disputes.

A victory for Phillips wouldn’t legalize rampant discrimination and allow shops to post signs banning gays or minorities. It would, however, distinguish between the established civil right to purchase a product, join a club or eat in a restaurant and the presumed right to harness a creative professional’s imagination against his or her will.

Republican Sen. Rand Paul of Kentucky, who is an ophthalmologist, argued in 2011 that recognizing a right to health care would allow people to come to his house and conscript him. The premise seems farfetched, but the point is well-made that granting public rights to a service places an obligation on private service providers.

If that obligation is simply to sell an off-the-shelf product to customers without regard to their race, religion or sexual orientation, societal and governmental interests outweigh an individual objector’s whims. If the obligation is to use one’s unique personal talents to craft and convey an unwelcome message, it becomes a burden that ought to exceed constitutional weight limits.

Turning away customers due to philosophical differences may be a poor business practice, but we believe the First Amendment gives Jack Phillips the right to resist creative coercion.

The Wilson Times