Conservatives rightly grow angry at the facts considered by the Supreme Court in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. This case involved a Colorado baker, Jack Phillips, who had refused to custom-design a cake to help celebrate a gay wedding. As a Christian, Phillip objected to advancing a message that conflicted with his sincerely held religious beliefs. Once he had done so, he was prosecuted under equal-protection laws. Although the Supreme Court dodged the issue in its decision, this was at heart a question of compelled speech — Phillips was being forced by law to use his artistic talents against his will.
Today, many conservatives want to compel others to carry their speech by regulating social-media platforms’ ability to moderate content. That’s wrong and against longstanding conservative principle. Conservatives need to find another solution to their complaint.
The Masterpiece Cakeshop case was less straightforward than it appeared to many. To conservatives, the baker had a right to refuse service to any customer that demanded he contradict his sincerely held belief. To progressives, the baker was guilty of illegal discrimination. Framed that way, progressives were actually on stronger legal ground than were conservatives. The civil-rights laws of the 1960s had established a category of “protected classes” who had been the subject of past discrimination in an attempt to right those wrongs.
But progressives were passing over another part of the story. The Supreme Court chose not to deal with what was actually the more important and substantive component of Phillips’s complaint: that he was being compelled to engage in speech, which Justice Clarence Thomas emphasized in his concurring opinion in the case.
What was actually happening was a clash between the U.S. Constitution as written and a set of laws (or “super-statutes”) that are treated with enough reverence by many as to be thought of as a second constitution — the civil-rights laws. Despite their prominence, however, the civil-rights laws must give way when they conflict with an established constitutional right, particularly one as sacred as the right to free expression. That is what actually happened in this case, and despite the Supreme Court’s avoidance of the direct issue, a similar question will come before them eventually.
It should worry Americans that some conservatives took the wrong lesson from this case. Many of them looked at the verdict and felt as if the Court’s silence on protected speech amounted to privileging the civil-rights laws above the First Amendment — which meant they’d need to use similar means to protect their own speech. In other words, “political viewpoint” should become a protected class. If social-media firms, especially, were seen to be disproportionately silencing conservative voices — compared with their treatment of progressives — then that amounted to discrimination. Indeed, the law, then, needed to change to end legal anti-conservative discrimination just as it had ended legal anti-minority discrimination.
This is the wrong approach. It doubles down on the progressive modus operandi that attempts to dilute the Constitution through “super-statute” laws like the civil-rights laws that legislatures aren’t willing to repeal or reform. Instead, conservatives should be standing up for the Constitution and its fundamental rights of free speech and free association.
That means not forcing speech on anybody, period. No matter how two-faced and hypocritical a platform is, it shouldn’t be compelled to carry speech it disagrees with; that is at the core of our First Amendment protections.
That means that hard work will be needed from conservatives on two fronts. First, they need court cases or well-crafted laws aimed at establishing proper boundaries around civil-rights laws so they aren’t used to undermine fundamental protections such as free speech, free association, and property rights. Secondly, they need to organize around the newer, distributed models of Web 3.0 that allow them to create social networks without an all-powerful platform owner. They could, for instance, all use Odysee instead of YouTube. (Content creators, take note: It’s trivially easy to upload all your YouTube videos to Odysee.)
It’s not as if conservatives aren’t up for the challenge. Take, for example, the Right’s success in reshaping the institution of talk radio in opposition to the mainstream media of the day. That feat was arguably a harder lift than this one is today, and was also entirely consistent with conservative principle. Conservatives win when they stay true to principle. That’s as true today as it has ever been.