Someone ought to alert the media. For decades—if not longer—many conservatives have insisted that “symbolic speech” is not protected by the First Amendment. On issues ranging from antiwar armbands, to pornography and flag desecration, they have long argued that if it’s not spoken words, it isn’t protected by the First Amendment. But now, it has become a common right-wing argument that the First Amendment actually extends far beyond what even civil libertarians believed when they defended the right to armbands, pornography, flag desecration, and other forms of expression. Now conservatives are aligning with more consistent libertarians to argue that the First Amendment gives businesses the right to refuse service to the public, provided that this service involves any kind of artistic expression. The argument that antidiscrimination laws can violate free speech has come up before regarding photographers who refuse to take pictures for same-sex weddings. It has also been made in defense of bakers who insist that their religion forbids them from making wedding cakes for gay couples, including Jack Phillips, a Colorado baker whose case was recently argued before the Supreme Court. The argument goes that cakes (and photographs) are an artistic expression and that forcing bakers and photographers to serve customers equally, regardless of sexual orientation, is therefore a violation of their right to free speech.
There are several problems with this idea. Firstly, bakers are not being forced to or forbidden from creating any type of cake that they want, in accordance with their personal artistic vision. But if they choose to make cakes, they should not be able to refuse to make them for customers based on sexual orientation, race, gender, or other immutable traits. This is different from what civil libertarians generally define as censorship, banning forms of expression entirely, at least in certain venues. The ACLU aptly summarizes this distinction by stating, “The Colorado anti-discrimination law doesn’t tell the bakery how to make its cakes. What it says is that if the bakery chooses to sell cakes, it can’t refuse to sell them to certain people based on their sexual orientation.” If a baker were forced to include political messages on a cake (generic platitudes about love and marriage don’t really qualify in that regard), that would be a free speech violation. In this scenario, a baker would be forced to explicitly endorse a political message that they disagree with. But providing a service to customers is not the same as making a political message, and it is certainly not an endorsement of their “lifestyle.”
Secondly, arguing that bakers have a First Amendment right to discriminate necessitates creating such a broad exemption to antidiscrimination laws as to risk gutting them. Any number of services provided by businesses could be exempt from antidiscrimination laws based on qualifying as artistic expression or symbolic speech. A barber could claim that haircuts were a form of artistic expression and that they had a right to refuse to cut women’s hair. An advertising agency could refuse to advertise black-owned businesses. A carpenter could refuse to make furniture for gay customers. In fact, since films are clearly an art form, filmmakers could refuse to cast any nonwhite actors for any roles. To be clear, businesses should enjoy very broad First Amendment protections. For example, distasteful as it may be to many people, video game companies and television networks should be free to include whatever content they and their customers see fit. But these examples are different from that of anti-gay bakers, because they involve businesses being allowed to choose what they want to create, not which customers they want to serve.
Finally, this argument creates an unnecessary conflict between anti-discrimination laws, which have existed in some capacity in at least some parts of the United States since the nineteenth century, and free speech. It has long been understood that while people have the right to hold whatever hateful or bigoted beliefs they want and express them in a host of ways, they are not allowed to discriminate based on race and gender if they operate a business open to the public. Why should that be any different for LGBT Americans, as increasingly more states and cities include them in antidiscrimination laws? (The federal government should also include LGBT Americans in its antidiscrimination legislation but has not thus far.) As the ACLU has demonstrated for decades, it is perfectly possible and indeed necessary to stand for both antidiscrimination laws and freedom of speech. We do not need to sacrifice one to save the other.