Commentary

Oregon: Bakers’ Statements to National Media Were “Unlawful”

Most of us probably assume that if legal charges are filed against us and we consider them unjust, we have a First Amendment right to raise a ruckus in the press. But last week’s controversial Oregon cake ruling suggests that some public officials are not so sure about that.

Last week, the Commissioner of the Oregon Bureau of Labor and Industries, Brad Avakian, ordered Melissa and Aaron Klein of Sweet Cakes by Melissa to pay $135,000 in damages, primarily for emotional distress, to a same-sex couple it had turned down for a wedding cake (earlier). In addition, the ruling ordered the Kleins to

cease and desist from publishing, circulating, issuing or displaying, or causing to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

Contrary to some early reports in the conservative press, this is not really a “gag order” that strips the Kleins of “all [their] First Amendment rights,” “silences” them “from speaking publicly about not wanting to bake cakes for same-sex weddings” or even forbids them “from talking about the ruling.” But even leaving the exaggerations aside, the case includes elements that should genuinely alarm free speech advocates.

The cease and desist order is grounded in precedents in which courts have allowed government to ban certain speech that announces an intent to discriminate in violation of law. Two of the best-known examples are the posting of signs with messages like “Whites only served here,” and classified ads with headings like “Help Wanted — Female.” (Most would agree that such speech furnishes at least evidence of intent to discriminate; the closer First Amendment question is whether it can be made punishable in itself, with no need to show that it interfered with any actual transactions.) At his Washington Post blog Volokh Conspiracy, Eugene Volokh goes into more detail and concludes that courts’ willingness to uphold such bans arises from what is known as the “true threat” exception to the First Amendment, in this case a “true threat of illegal conduct.” (Many famous “true threat” cases arise from threats of violence, but it seems the category is broader than that.)

The case includes elements that should genuinely alarm free speech advocates.

Even assuming a statement of intent to discriminate might constitute a “true threat,” there can be — as there is in this case — an awfully thin and blurry line between that and core speech protected by the First Amendment.

Suppose someone began a sentence with the words “I don’t think I should have to serve [group X] at my shop….” If they follow with the words “but since it’s the law, I’ll comply,” the sentence as a whole would clearly count as protected speech under current law. If they follow with the words “and I won’t, law or no law,” it loses protection. But suppose the speaker were to end the sentence at “…my shop.” Up to that point, the speaker has expressed only an essentially political opinion, not a forward-looking intention to defy the law.

Such speech is all the more of core First Amendment interest when it takes place not in a local, commercial context but as part of broader political discussions between citizens as to whether laws are unjust or government too heavy-handed. You might think the state needs to be at special pains not to chill or suppress this kind of broader political discussion. That might imply giving the benefit of the doubt to speech that conveys less than clear and unmistakable future intent to break the law, or speech that is primarily directed at outside audiences who are listening as citizens rather than as prospective clients (in contrast to the old no-service signs and classified ads, which could be seen as attempting to chase away part of the local customer base).

That’s not how Oregon saw it. It chose to go after the Kleins over appearances they did in national conservative media, and over having posted a sign on their closed business thanking supporters and promising to continue the fight. (They continue to sell cakes they bake at home.) Included as subjects of this complaint were national media interviews in which the Kleins, along with statements about what had gone through their mind when they turned down the lesbian couple’s request, added a few forward-looking statements such as “we can see this becoming an issue and we have to stand firm.” The window posting, meanwhile, included the language “This fight is not over. We will continue to stay strong. Your religious freedom is becoming not free anymore. It is ridiculous that we cannot practice our faith.”

Remarkably, as Scott Shackford noted at Reason, both the state agency and Avakian — see pp. 22-26 of his ruling — interpreted these statements as unambiguously announcing a forward-looking intent to discriminate in future transactions. Avakian’s ruling neither notices nor engages the objection that speech by the targets of a government enforcement action seeking to rally public support for their cause might need more careful First Amendment handling than the announcement of, say, a gender preference in a classified ad.

Even more remarkably, the state agency had demanded damages from the Kleins over the very fact of media coverage sympathetic to their cause, which was said to have inflicted further trauma on their adversaries’ eggshell psyches. While Avakian declined to grant a separate award of damages under this heading, he still declared the Kleins’ statements in their own defense “unlawful.”

The implication is clear enough: if locked in a legal battle with Oregon authorities, you may not have a legal right to rally your supporters with statements like “This fight is not over” and “We will continue to stay strong.”

You can see why the authorities themselves might find that approach convenient. But it’s not a result liberals should applaud.

Walter Olson is Senior Fellow at the Cato Institute’s Center for Constitutional Studies and founder of Overlawyered.com.