Much conduct is not inherently expressive. For example, rubbing my ear lobe is not ordinarily intended or perceived to send a message. But let’s say that my wife and I have our own private code: if I rub my ear lobe when we’re at a cocktail party, it means: “Help get me away from these folks!” In that instance, conduct that is not ordinarily expressive become expressive, and that is true even though my wife is only the person at the cocktail party who will perceive the message.
Now let’s say that some nut tells me that if I walk out of my house next Wednesday morning to pick up my daily Wall Street Journal, he will take that as an instruction from me to kill his dog. He is trying to impose his own code on my otherwise non-expressive conduct, and while I will not agree to his code, I would also rather not have him think that I’m instructing him to kill his dog. I also certainly wouldn’t want him to tell anyone else that I had engaged in the very conduct that he had told me that he would take as an instruction. So I decline to go out to pick up the paper that day, lest he or anyone else think that I had directed him to kill his dog.
These admittedly farfetched hypotheticals (well, the second one is farfetched; the first might prove useful) help, I think, to identify the core analytical flaw in the Colorado appellate court ruling last Thursday that held that the creation of a pink cake with blue frosting does not rise to the level of expressive conduct protected by the First Amendment—and that Masterpiece Cakeshop and its owners therefore have no First Amendment protection against being compelled to bake such a cake. As the opinion makes clear, Masterpiece Cakeshop was willing to bake the cake for the customer, Autumn Scardina, until Scardina volunteered that the cake design was intended to celebrate Scardina’s supposed transition from male to female. At that point Masterpiece Cakeshop refused.
The court thinks it significant that Masterpiece Cakeshop “conceded at trial” that a pink cake with blue frosting has “no inherent meaning.” But Scardina assigned a coded meaning that would, one might say, be baked into the cake, and Masterpiece Cakeshop did not want to express that coded meaning. Just as in my hypotheticals, it matters not at all whether anyone else would perceive that meaning.
To put the point more simply: Scardina told Masterpiece Cakeshop that the cake design would express a message that Scardina wanted to express. So how does Masterpiece Cakeshop have no First Amendment interest against being coerced to participate in the expression of that message?