Speech or Conduct? the Free Speech Claims of Wedding Vendors

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 65 No. 2

Speech or Conduct? The Free Speech Claims of Wedding Vendors

Caroline Mala Corbin

SPEECH OR CONDUCT? THE FREE SPEECH CLAIMS OF WEDDING VENDORS^†

Caroline Mala Corbin^*

Introduction

Is baking a cake for a same-sex wedding or photographing the bride-and-bride or groom-and-groom "speech" triggering free speech scrutiny? Or is providing wedding services better viewed as conduct that does not implicate the Free Speech clause?

Marriage equality is now a constitutionally protected right in the united States.¹ The Supreme Court has declared that denying same-sex couples the right to marry violates substantive due process and equal protection.² This decision was cause for widespread celebration.³

However, not everyone is pleased. Many oppose same-sex marriage on religious grounds.⁴ Indeed, some in the wedding industry claim that it violates

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their religious beliefs to participate in any way in these marriages.⁵ To do so, they argue, would make them complicit in sin.⁶ Wedding photographers do not want to take pictures of same-sex unions;⁷ wedding bakers and florists do not want to bake cakes or arrange flowers for same-sex ceremonies;⁸ and bridal shop owners do not want to sell dresses to same-sex brides.⁹

In many places, these vendors are free to refuse service to same-sex couples, as neither federal¹⁰ nor most state public accommodations law bars discrimination based on sexual orientation.¹¹ In jurisdictions with LBGT protections, religious vendors have claimed that these anti-discrimination laws violate their First Amendment rights. They have advanced religious claims and speech claims.

For the speech claims, whether baking a cake or taking a picture counts as speech is pivotal. After all, the Free Speech Clause prohibits the "abridging of freedom of speech."¹² At the same time, the clause has been interpreted to protect conduct found to have an expressive component. For example, burning

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a cross on a black family's lawn may communicate hostility and even a threat of violence.¹³ Burning an American flag often communicates disapproval or disgust with U.S. policy.¹⁴ The Supreme Court has recognized both as expressive conduct implicating the Free Speech Clause.

Should creating a cake or photograph likewise be deemed expressive conduct that triggers some level of free speech scrutiny? In other words, do religious bakers and photographers have a compelled speech claim if the government forces them to render services pursuant to public accommodations law?¹⁵ According to the vendors, these laws essentially compel them to express approval of same-sex marriages—something contrary to their deeply held beliefs.¹⁶

To be clear, the question for this Article is not whether public accommodation laws violate the Free Speech Clause but whether they even trigger free speech review. Or to put it another way, the question is not whether the wedding vendors' conduct is ultimately protected by the Free Speech Clause, but whether it is covered by it at all.

The two types of vendors are not entirely analogous. Photography, a branch of art, has long been recognized as a mode of communication in much the same way words are.¹⁷ Baking, in contrast, has not. Thus, the photographers' challenge also raises the question of whether conduct involving words or photographs necessarily amounts to speech that is covered by the Free Speech Clause.

Part I describes the current free speech doctrine surrounding expressive conduct. In particular, it examines the Spence v. Washington test for deciding whether conduct is deemed expressive or not.

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Part II considers whether a cake baked by a vendor for a same-sex wedding should be covered speech. It proposes that compelled expressive conduct—a little-analyzed category—does not trigger free speech scrutiny unless the compelled actor is forced to convey a message with which she disagrees. To find otherwise would exacerbate a recent trend, characterized as revival of Lochner-era libertarianism, of using the First Amendment to skirt government regulation. Part II then concludes that baking a cake is not covered speech, as the business context essentially neutralizes any potential message of endorsement.

Part III addresses the question of whether photographs by a professional wedding photographer should amount to covered speech. It contemplates—but ultimately rejects—the possibility that any conduct involving words or photographs must implicate free speech. It also suggests that both the regulated photographs and the challenged regulation must be considered in answering this question. It finds that, at most, the photographers' claims trigger intermediate scrutiny. My conclusions here are more tentative. This Article finishes by warning against the tendency to automatically value free speech over equality.

I. Expressive Conduct Doctrine

Laws that regulate conduct with an expressive component are subject to heightened scrutiny. Whether conduct has an expressive element is (often but not always) determined by the test set forth in Spence v. Washington¹⁸ : conduct is deemed expressive if the actor intended to express a particularized message and that message is understood by the audience.¹⁹ Due to open questions and inconsistent application, it is not altogether clear how the Spence test would apply to bakers and photographers who decline to provide wedding cakes or wedding photographs.

A. O'Brien and Spence Tests

1. United States v. O'Brien

Regulations of conduct with an expressive component must be closely scrutinized. When the regulation targets the expressive conduct because of its

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message, then, like all content-based regulations,²⁰ it is subject to strict scrutiny.²¹ For content-neutral regulations of expressive conduct, the test from United States v. O'Brien²² controls. After David Paul O'Brien burned his draft card on the steps of the South Boston Courthouse to protest the Vietnam War,²³ he challenged the statutory amendment that made such conduct illegal.²⁴ Under O'Brien, the first question is whether the regulation really is content neutral, or whether its true purpose was to censor speech.²⁵ If the latter is true, then strict scrutiny applies. If the regulation's goal is unrelated to the suppression of speech, and the effect on speech is incidental rather than intentional, then intermediate scrutiny applies.²⁶ In addition to applying intermediate scrutiny, courts also ask whether the regulated speaker has alternative means of communicating her message.²⁷ If the regulation fails intermediate scrutiny, or the speaker lacks alternate means, then the regulation violates the Free Speech Clause.

Because intermediate scrutiny is so malleable, whether a regulation passes it can be difficult to predict.²⁸ The alternative means of communication requirement is also imprecise, with different lower courts requiring different

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showings.²⁹ All of this assumes, of course, that the challenged conduct has an expressive component.

2. Spence v. Washington

The threshold question—and the principal question for this Article—is: When does conduct qualify as expressive? The question here is not whether the conduct is ultimately protected by the Free Speech Clause, but whether it is covered by it. In other words, the question is not whether the Free Speech Clause is violated, but whether the Free Speech Clause is triggered.³⁰

Under Spence v. Washington,³¹ conduct is considered to have an expressive component sufficient to trigger free speech scrutiny if (1) the speaker intended to send a particularized message and (2) her audience understood that message.³² In answering these two questions, the Supreme Court has emphasized the importance of context. When analyzing whether a peace sign taped onto an American flag counted as expressive, the Spence Court observed, "[T]he context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol."³³

Historically, the Supreme Court has adopted a relatively narrow view of expressive conduct. In O'Brien, the Court worried that all conduct risked becoming expressive conduct if only the intent of the speaker were considered: "We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."³⁴ Thus, the Court insisted that the particular message be understood by the audience as well.

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In O'Brien itself, the Court assumed without deciding that burning a draft card was expressive conduct,³⁵ though one suspects everyone knew exactly why O'Brien burned his draft card.³⁶ In Texas v. Johnson, however, the Court expressly acknowledged that burning an American flag—an inherently symbolic item³⁷ —at a political protest during the Republican National Convention³⁸ amounted to expressive conduct.³⁹

3. Expressive Conduct in Speech vs. Religious Claims

While this Article focuses on the free speech claim of religious objectors, most simultaneously bring a religious liberty claim. Consequently, it is worth noting that there is an important difference between triggering the Free Speech Clause and triggering the Free Exercise Clause or a statute like the Religious Freedom Restoration Act (RFRA),⁴⁰ or a state counterpart,⁴¹ via expressive conduct.

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At first glance, the two appear parallel. In religious liberty challenges, especially under RFRA,⁴² the question is whether the regulation substantially burdens religion.⁴³ In free speech challenges, the question is whether the regulation burdens expression. As formulated, religious protection seems more difficult to obtain, as existing tests require that the burden on the ability to practice religion be substantial.⁴⁴

In fact, it can be easier to trigger religious protections because courts—in particular the current Supreme Court—have proven to be highly deferential to subjective claims of substantial religious burden. In its most...