In 2018, the Supreme Court handed down a 7–2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, ruling that small businessman Jack Phillips could not be compelled to bake a cake for a same-sex wedding. Phillips’s legal team argued that to force him to do so would be to violate the Free Speech and Free Exercise clauses of the First Amendment. Though Phillips prevailed, the decision was made on narrower grounds than religious-liberty advocates had hoped in that it was largely based on procedural errors made and bias exhibited by the commission. Thus the decision was met with varying degrees of enthusiasm at National Review.
I myself agree with those who hold that the decision danced around the central issue at hand, and should have delivered a broader victory for religious freedom and the First Amendment more generally. Senator Josh Hawley had no such reservations about it, though, tweeting that “the #SCOTUS ruling today is a win for religious freedom. SCOTUS was clear: people of faith must be treated with respect & dignity.”
It was surprising, then, to see Hawley claim that he had a First Amendment right to compel a third party to amplify his speech when Simon & Schuster announced after last week’s attack on the Capitol — which was prompted by conspiracy theories pushed by Hawley — that it would not be publishing his forthcoming book, The Tyranny of Big Tech. Hawley responded in a statement:
This could not be more Orwellian. Simon & Schuster is canceling my contract because I was representing my constituents, leading a debate on the Senate floor on voter integrity, which they have now decided to redefine as sedition. Let me be clear, this is not just a contract dispute. It’s a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don’t approve of. I will fight this cancel culture with everything I have. We’ll see you in court.
As I have previously articulated, I would move forward with Hawley’s book if I were an executive at Simon & Schuster. But the fact remains that I’m not, and its decision not to amplify Hawley’s speech or otherwise associate with him, far from being a direct assault on the First Amendment, is an example of a private entity exercising its own First Amendment rights. To compel Simon & Schuster to move forward with Hawley’s project on the basis of the First Amendment would be a gross distortion of the Constitution, one that could have troubling implications for conscience and speech rights down the line. Moreover, there will be plenty of publishers champing at the bit to take on The Tyranny of Big Tech, and it is likely that it will sell even better than it would have otherwise thanks to this episode.
Senator Hawley had it right the first time: To compel speech, or in this case, to compel others to amplify your own speech, is wrong.