tldr: yes with an if, or no with a but.
By now you've heard about how an Oregon Labor Commissioner ordered the former owners of a bakery to pay $135,000 for refusing to bake a wedding cake for a same-sex couple. That order was widely reported as "gagging" the bakers and preventing them from expressing their opposition to same-sex marriage. My initial conclusion was that this spin was clearly wrong. People I respect — including my co-blogger Patrick — suggested that I should take a more careful look, and I have. My modified conclusion is that the Oregon Labor Commissioner's order is very troubling in light of the facts of the case because it's not clear what it bans. Based on the evidence before the Commissioner, the order may or may not purport to ban the Kleins from saying that they intend to continue to litigate the issue or that they believe that the order is unconstitutional.
This isn't a post about same-sex marriage, or about anti-discrimination laws, or religious freedom. It's not a post about most of the merits of the case. I'm rudely and defiantly not talking about the things you want to talk about, and talking about a very narrow issue instead: did Oregon Labor Commissioner Brad Avakian violate the First Amendment rights of Aaron and Melissa Klein of Sweet Cakes by Melissa through an order prohibiting them from expressing defiance of state anti-discrimination laws?
What Did the Labor Commissioner Order About Speech?
Any story about what happened in Oregon should start with the text of the Labor Commissioner's order. Too many journalists paraphrased it and didn't attach it. That's lousy practice. Here is the order.
The order describes Commissioner Avakian's factual findings in great detail. The core of it is this: a same-sex couple wanted a wedding cake from Sweet Cakes by Melissa, but the bakery refused on religious grounds. Commissioner Avakian found that the Kleins, in the course of the case, had violated Oregon Revised Statute 659A.409, which forbids a business from announcing that it won't serve people based on prohibited characteristics:
659A.409 Notice that discrimination will be made in place of public accommodation prohibited; age exceptions. Except as provided by laws governing the consumption of alcoholic beverages by minors and the frequenting by minors of places of public accommodation where alcoholic beverages are served, and except for special rates or services offered to persons 50 years of age or older, it is an unlawful practice for any person acting on behalf of any place of public accommodation as defined in ORS 659A.400 to publish, circulate, issue or display, or cause 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 the 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 race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older.
Commissioner Avakian ordered the Kleins not to do that:
the Commissioner of the Bureau of Labor and Industries hereby orders Respondents Aaron Klein and Melissa Klein 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.
That's the language that led me to conclude, initially, that the Oregon Labor Commission did not "gag" the bakers unconstitutionally.
Does the First Amendment Give A Business The Right To Say "No [Group] Served Here"?
Can the government constitutionally prohibit a business from saying (for instance) "no gays served here" or "whites only"?
Probably yes. On this I defer to Eugene Volokh's explanation. Prof. Volokh is the Superman of First Amendment analysis. I am, at best, that stupid monkey that the Wonder Twins kept around until it bit Apache Chief and gave him rabies.
Volokh rejects the standard explanation that a "whites only" sign is "conduct" or an "act" rather than speech, but sees it as a true threat of illegal conduct, namely discrimination:
Assume that it is indeed against the law to refuse to serve someone based on race, religion, sexual orientation, and so on — and, in particular, to refuse to provide a cake for a same-sex commitment ceremony. Then, saying we “will … refuse” to provide a cake is essentially a true threat of illegal conduct.
To be sure, it is not a threat of violence, or even a threat to commit a crime, but it is a threat to act illegally (by violating the anti-discrimination statute). And it is a threat that would have much the same effect as an outright refusal to provide a cake to someone who shows up and asks for it, because it tells people that it’s futile to even ask.
This seems to me implicit in determining that conduct can be prohibited. Courts have consistently found that laws prohibiting discrimination in public accommodations don't violate free speech or free association rights. Courts have also found that speech that is "integral" to lawfully prohibited conduct can be punished. As Volokh points out elsewhere, the boundaries of that doctrine aren't perfectly clear, but the heartland is. We punish antitrust violations, and repudiations of contracts, and breaches of confidentiality agreements, even though they are accomplished by speech. If the First Amendment protected saying — for instance — "no blacks served here" and "we won't serve people like you, get out," then anti-discrimination laws are unworkable.1
So: it's likely that the government can punish a business owner for saying "we won't serve gays" or "whites only" or the like.2
Volokh sounds an appropriate note of caution, however:
Note, by the way, that simply saying “we disapprove of the Oregon decision,” or “we disapprove of same-sex marriages,” is not a constitutionally unprotected threat of denial of service — which is why the text of the order, properly read, does not prohibit such statements.
I agree that's how the order should be read if we presume the Oregon Labor Commission only means to prohibit unprotected speech.
But the facts of the case make that unclear.
What Kind Of Speech Generated This Order, And What Kind of Speech Does The Order Contemplate?
So: Commissioner Avakian doesn't violate the First Amendment by telling a business not to say "we don't serve gays."
But is that what he's saying? The facts of the case suggest that Avakian is punishing — and therefore, arguably, prohibiting — expressing opinions about the law or expressing an intent to litigate constitutional rights.
Commissioner Avakian disclaimed any intent to punish opinions, saying the law "does not cover expressions of personal opinion, political commentary, or other privileged communications unrelated to the business of a place of public accommodation . . ." and that it only prohibits statements of intent on behalf of a public accommodation. But this disclaimer is not entirely convincing in light of the speech Avakian found to be a violation.
Commissioner Avakian found that the Klein's comments on CBN television were a violation:
A. Klein: "I didn't want to be part of her marriage, which I think is wrong."
M. Klein: "I am who I am and I want to live my life the way I want to live my life and, you know, I choose to serve God."
A. Klein: "It's one of those things where you never want to see something you've put so much work into go belly up, but on the other hand, um, I have faith in the Lord and he's taken care of us up to this point and I'm sure he will in the future.3
The order also cites a sign the Kleins left in the bakery's window:
Closed but still in business. You can reach me by email or facebook. www.sweetcakesweb.com or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. The fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart.
Finally, the order cites a radio interview.
Perkins: Tell us how this unfolded and your reaction to that.
Klein: 'Well, as far as how it unfolded, it was just, you know, business as usual. We had a bride come in. She wanted to try some wedding cake. Return customer. Came in, sat down. I simply asked the bride and groom's first name and date of the wedding. She kind of giggled and informed me it was two brides. At that point, I apologized. I said "I'm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes." And she got upset, noticeably, and I understand that. Got up, walked out, and you know, that was, I figured the end of it.
Perkins: 'Aaron, let me stop you for a moment. Had you and your wife, had you talked about this before; is this something that you had discussed? Did you think, you know, this might occur and had you thought through how you might respond or did this kind of catch you off guard?'
Klein: 'You know, it was something I had a feeling was going to become an issue and I discussed it with my wife when the state of Washington, which is right
across the river from us, legalized same-sex marriage and we watched Masterpiece Bakery going through the same issue that we ended up going through. But, you know, it was one of those situations where we said "well I can see it is going to become an issue but we have to stand firm. It's our belief and we have a right to it, you know." I could totally understand the backlash from the gay and lesbian community. I could see that; what I don't understand is the government sponsorship of religious persecution. That is something that just kind of boggles my mind as to how a government that is under the jurisdiction of the Constitution can decide, you know, that these people's rights overtake these people's rights or even opinion, that this person's opinion is more valid than this person's; it kind of blows my mind.' (February 13, 2014, Perkins' interview)
Commissioner Avakian found that these statements constituted a pronouncement that the bakery would continue to refuse to bake cakes for gay weddings despite the law:
In addition, they also constitute notice that discrimination will be made in the future by refusing such services. In the Perkins' interview, AK stated " … We don't do same-sex marriage, same-sex wedding cakes …. " He continued that in discussing Washington's same-sex marriage law with MK, "we can see this becoming an issue and we have to stand firm." The note similarly said " … This fight is not over. We will continue to stand strong .. ,," On their face, these statements are not constrained to a singular incident or time. They reference past, present and future conduct. AK did not say only that he would not do complainants' specific marriage and cake but, that respondents "don't do" same-sex marriage and cakes. Respondents' joint statement that they will "continue" to stand strong relates to their denial of service and is prospective in nature. The statements, therefore, indicate Respondents' clear intent to discriminate in the future just as they had done with Complainants.
I think that's a very suspect reading of the comments. They strike me as a description of what happened, a statement of the Kleins' beliefs, and an ambiguous statement that probably indicates intent to litigate to promote their legal position. The "don't do" comment relates what they said in the past, the "stand strong" comment may well refer to litigation, and Commissioner Avakian's finding to the contrary is profoundly chilling of any dialogue about such laws or such a proceeding. It's clear that Avakian cannot, constitutionally, prohibit the Kleins from saying "this law is wrong" or "our First Amendment rights should allow us to refuse to make a cake that violates our religious beliefs" or "we don't agree with gay marriage" or "we will continue to fight for our rights." But Avakian's order strongly suggests that he — and the Labor Commission — may treat such statements as a violation. That means that the Kleins, even if they are eventually vindicated in a real court, will have to expend tens or hundreds of thousands of dollars defending their free speech, and in the meantime will be subject to ruinous sanctions.
Taken in the abstract, Commissioner Avakian's prohibition isn't a problem. But in the context of his factual findings and the facts of this case, it is vague and ambiguous, and suggests that the government seeks to punish statements disagreeing with Oregon's anti-discrimination laws.
Consider an analogy. If I call Commissioner Avakian a petty tyrant, an upjumped clerk, a talentless grasping bureaucrat, the spavined chief kangaroo of a parody of a court, those statements are classic opinion protected by the First Amendment, and aren't defamatory. But imagine that I said such things, and he sued, and some court issued an order prohibiting me from making "false statements of fact" about Avakian. Can I call him a scrofulous taint-snorting twatwaffle now? The law says I can — it's pure hyperbole and opinion, and can't be read as an assertion fact. But so were the things I said before, and those things inspired a court to forbid "false statements of fact." What the hell can I say about Avakian now? What the hell can you say about him? Do you want to gamble your life savings to find out?
In public statements, the Oregon Labor Commission has denied that this is a "gag order," and the usual suspects have asserted that critics are engaged in inaccurate political propaganda. But the order part of the ruling doesn't exist in a vacuum; it's issued in the context of the facts of the case and the Commissioner's other findings of law. If I were the Kleins, or their lawyer, I would be very uncertain what I could say without the Commission claiming a violation of the order.
So: I was right to criticize coverage that described this without details or the text of the order as a "gag order." But I too quickly dismissed all criticism of the order. Its vagueness and potential scope are quite troubling.
- The tension between anti-discrimination laws and the First Amendment is beyond the scope of this post. ▲
- Whether "we won't make a cake for a gay wedding" is the legal equivalent of "we won't serve gays" is also beyond the scope of this post. Everything you want to argue is beyond the scope of this post. Deal. ▲
- Failure to capitalize He in original ▲
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