The Corner

Law & the Courts

Free Speech Wins a Round

In a time when free speech in places like Portland, Berkeley, and Middlebury exists only by permission of the mob, and in a time when small business owners who dissent from the sexual revolution often find themselves facing financial ruin, it’s genuinely refreshing to see free speech win. Earlier today, the Kentucky Court of Appeals ruled in favor of a small Lexington, Kentucky, T-shirt printer called Hands On Originals (HOO), holding that HOO did not violate the city’s fairness ordinance when it refused to print T-shirts celebrating the Lexington Pride Festival. 

The case presented the cleanest of legal questions — can a small business that has consistently refused to print messages that its owners find immoral (including curse words and blasphemous images) lawfully extend that moral stance to messages celebrating LGBT identity? In its opinion, the court exhibited a level of judicial common sense so rare that I found myself surprised by almost every paragraph. The court actually read the relevant law, applied it to the undisputed facts, and reached a decision that was legally (not politically) correct. 

First, rather than treating public accommodation laws as all-powerful instruments of social justice, the court raised proper alarms:

[I]t is not the aim of public accommodation laws, nor the First Amendment, to treat speech as [discriminatory] activity or conduct. This is so for two reasons. First, speech cannot be considered an activity or conduct that is engaged in exclusively or predominantly by a particular class of people. Speech is an activity anyone engages in—regardless of religion, sexual orientation, race, gender, age, or even corporate status. Second, the right of free speech does not guarantee to any person the right to use someone else’s property, even property owned by the government and dedicated to other purposes, as a stage to express ideas.

Exactly right. Here’s more:

In other words, the “service” HOO offers is the promotion of messages. The “conduct” HOO chose not to promote was pure speech. There is no contention that HOO is a public forum in addition to a public accommodation. Nothing in the fairness ordinance prohibits HOO, a private business, from engaging in viewpoint or message censorship. Thus, although the menu of services HOO provides to the public is accordingly limited, and censors certain points of view, it is the same limited menu HOO offers to every customer and is not, therefore, prohibited by the fairness ordinance.

A contrary conclusion would result in absurdity under the facts of this case. The Commission’s interpretation of the fairness ordinance would allow any individual to claim any variety of protected class discrimination under the guise of the fairness ordinance merely by requesting a t-shirt espousing support for a protected class and then receiving a value-based refusal. A Buddhist who requested t-shirts from HOO stating, “I support equal treatment for Muslims,” could complain of religious discrimination under the fairness ordinance if HOO opposed equal treatment for Muslims and refused to print the t-shirts on that basis. A 25-year-old who requested t-shirts stating, “I support equal treatment for those over forty” could complain of age discrimination if HOO refused on the basis of its disagreement with that message. A man who requests t-shirts stating, “I support equal treatment for women,” could complain of gender discrimination if HOO refused to print the t-shirts because it disagreed with that message. And so forth. Clearly, this is not the intent of the ordinance.

Clearly not, but don’t tell that to the Lexington Human Rights Commission. Like their sister social justice warriors in other states, they’ve doggedly pursued a Christian small business, determined to stamp out dissent in the name of “equality.” The only false note in the case was the court’s decision to distinguish (rather than disagree with) a Colorado decision holding that it was unlawful discrimination for a baker to refuse to bake a cake for a gay wedding. Otherwise, however, the reasoning stands as a rebuke to efforts to use nondiscrimination ordinances to overcome traditional constitutional prohibitions against compelled speech.

The case will probably go to the Kentucky Supreme Court, but for now HOO and its lawyers (my old colleagues at the Alliance Defending Freedom) deserve congratulations for an excellent result. 

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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