More Thoughts on the U.S. Supreme Court’s Term/Analysis

Last week the Court ruled, in another 5-4 decision, that the state of California cannot force pregnancy crisis centers to post information about where and how a woman can get an abortion. (See the article below.) The state passed the FACT Act, concerned that economically challenged and uneducated women would not be aware that free abortion and pregnancy related services are available to them. The act, which was upheld by the 9th Circuit Court of Appeals, was struck down by the U.S. Supreme Court on the grounds that the state of California was violating the First Amendment rights of these private crisis centers by forcing them by law to engage in “compelled speech.” Defenders of the law also accused the centers, some of which are unlicensed, of engaging in deceptive advertising.

Both this decision and the prior one upholding the right of a baker to refuse to make a designer wedding cake for a gay couple on the grounds of religious freedom, deal with the issue of compelled speech. Clearly, the states, in this case California and Colorado, cannot mandate through legislation, certain types artistic or even commercial speech. Regardless if one agrees or disagrees with the message in the speech, these decisions are important in clarifying the free speech rights of private citizens and organizations. First, the Masterpiece Cake case expands the notion of what constitutes speech that is considered artistic–in this case a cake.

Secondly, the argument that one party must be ‘compelled’ by the state to engage in speech in order to not discriminate against another party’s rights did not hold sway by the majority of the Court, however slim. The state cannot assume that every person has to create art (which is speech) for every occasion or inform every pregnant woman that she can receive a free abortion just because gay marriage and abortion are legally protected rights.

To some, this seems irreconcilable. How can this be, they ask? Consider that anti-discrimination laws punish or prevent action, not speech, that would disenfranchise certain people.  While Mr. Phillips does not have to celebrate gay marriage by creating a cake for the two men who walked into his shop, he also cannot stop them from getting married.  Legal observers can only conclude that affirmative rights acknowledged or given by the state, such as marriage equality or abortion, are not eroded by upholding free speech that does not promote them.