Speech for Me, Not for Thee

The latest decision by the Colorado Court of Appeals ruling against Jack Phillips and Masterpiece Cakeshop concluded that Masterpiece Cakeshop had discriminated against transgender attorney Autumn Scardina on the basis of gender identity when Phillips’s wife initially agreed to bake a fairly generic pink-and-blue patterned cake for Scardina, then Phillips declined to bake it after being informed — as part of Phillips’s customary inquiry into the expressive message of the cake — that the cake would be used to celebrate Scardina’s gender transition. As National Review‘s editorial on the decision explained, the sequence of events makes quite clear that Scardina’s actual purpose was simply to drag Phillips into court again if he refused to bake the cake, or to undermine his position in his then-pending Supreme Court case (the cert petition for which had been granted that very day) if he didn’t.

The Colorado Court of Appeals opinion rests on two premises. One is that refusing to bake the cake discriminated against Scardina’s gender identity. The other is that Phillips had no First Amendment right to decline to bake the cake because a generic pink-and-blue patterned cake, by itself, had no expressive content and is thus not “speech” protected by the First Amendment.

Ed Whelan dismantles the second premise with hypothetical examples illustrating that context can turn a normally non-expressive item or behavior into a message. Indeed, virtually all of human language (verbal or otherwise) depends upon context in order to be understood. This cake may not have been expressive in a vacuum, but once Scardina explained that it was aimed to deliver a particular message, it became an expression, and therefore Phillips had a right against being compelled by state law to send that message. (This is, by the way, the same right that social-media platforms have against being compelled to publish speech with which they disagree).

Consider, as well, the contradiction within the first premise. Masterpiece Cakeshop was willing to do business with Scardina, regardless of Scardina’s gender identity — that much is clear from the initial agreement to bake the cake. The theory that refusing to bake the cake amounted to gender-identity discrimination depends upon the argument that the cake’s message expressed Scardina’s gender identity — as the court put it, “conduct that is inextricably intertwined with [Scardina’s transgender] status.” In other words, this constituted discrimination under state law only because the cake was a message by Scardina that expressed Scardina’s gender identity. If Scardina had said, “I want this cake so I can poision my dog with it” and Phillips refused, there would be no discrimination case — it’s only because the refusal was about the message Scardina was expressing. We are thus presented with a court of law saying that the very same cake is inherently expressive for Scardina, yet not expressive at all for Phillips even when he is custom-making it for a known expressive use. Heads I win, tails you lose.