by Michael Dorf
On Verdict, my latest column addresses the free-speech implications of the denial by various internet companies of hosting, registration, and other services to the neo-Nazi website The Daily Stormer. To summarize and over-simplify, I argue: (1) Such companies (such as GoDaddy and Google) did not breach their contractual Terms of Service; (2) they did not violate the First Amendment, because as private actors, the Constitution (with the exception of the 13th Amendment) does not apply to them; (3) we ought nonetheless worry about an internet in which private censorship can deny a platform to unpopular speech, if not for the sake of neo-Nazis then for others; (4) Congress could address that issue with a statute imposing common carrier obligations on internet companies in most circumstances; and (5) such a statute could probably carve out an exception that allows such companies to refuse service to purveyors of hate speech. (I hedge by saying "probably" here and in the column because there is a possibility that the hate-speech exception would be struck down on the authority of R.A.V. v. City of St. Paul, about which I might have more to say in a subsequent post.)
Here I want to explore the interests asserted by the likes of GoDaddy, Google, and other internet companies in denying service to neo-Nazis and their ilk. I'll then consider implications of my analysis for the pending Supreme Court case of Masterpiece Cake Shop v. Colorado Civil Rights Comm'n.
Let's begin by assuming that in nearly all circumstances in which giant corporations deny service to a person or organization based on the offensiveness of the views of that person or organization, the corporations are motivated, at least in part, by financial considerations. GoDaddy, Google, Cloudflare, and the various other companies that have now withheld service from The Daily Stormer were very likely worried that their brands would be tarnished by association with neo-Nazis. Presumably that interest would be adequately served if a law forbade such companies from denying service to the likes of The Daily Stormer. There is not now a common carrier obligation on internet companies, but, as I argue in the column, there could be. If there were, then the companies would say to the public who think ill of having The Daily Stormer as a customer: "Hey, we don't agree with neo-Nazis any more than you do. If it were up to us, we would drop them as customers. But the law forbids that."
The State of New Hampshire made an argument along the foregoing lines in Wooley v. Maynard. Because the state put its motto ("Live Free or Die") on all license plates, the state said, no one would reasonably attribute to Maynard agreement with that message if he were forbidden from obscuring it (as he was so forbidden by the law he challenged). Yet Maynard won nonetheless. Chief Justice Burger's opinion for the Court says that "an automobile . . . is readily associated with its operator," which is not really responsive to the State's argument.
Vincent Blasi and Seana Shiffrin provide a better rationale for the result in Wooley in Chapter 13 of my book Constitutional Law Stories, where they focus on the internal effects of compelled speech.
To appreciate one aspect of the Blasi/Shiffrin argument, suppose that Google isn't concerned only about the financial impact of having The Daily Stormer as a customer, but is also concerned about its own participation, pursuant to its corporate motto "Don't be evil." Or better yet, if you think that "Don't be evil" is just marketing, imagine that a Holocaust survivor operates a web hosting service as a sole proprietorship, and that she understandably finds the idea of hosting The Daily Stormer repugnant. A law requiring her to do so as a common carrier would arguably address the communicative impact on others of her doing so but it would not address the internal impact of requiring her to do so. For my hypothetical Holocaust-survivor web hosting service provider, even if other people don't attribute support for The Daily Stormer to her, compelling her to provide service to The Daily Stormer still imposes harm. She finds association with the neo-Nazis repugnant even if no one finds out about it or attributes such association to her own choices.
But note that the internal effects of compelled service have nothing to do with "speech" as such. Hosting a website is not communication. Or if you think it is, imagine a different case. Suppose that a state has a public accommodations law that requires retail merchants and service providers to offer their goods and services to the public "without regard to the ideological views of any prospective customer." Now suppose that a different Holocaust survivor owns and operates a storage locker business. Renting storage lockers is not in any way "expression" in the First Amendment sense. Nonetheless, the internal harm of having to rent a storage locker to neo-Nazis is essentially the same as the internal harm that the Holocaust-surviving web-hosting service provider experiences when she is compelled to serve neo-Nazis. The internal harm has nothing to do with whether the thing that the seller of goods or services provides is expressive.
That brings me to Masterpiece Cake Shop. In its cert petition, Masterpiece Cake repeatedly refers to itself as a "cake artist," arguing at length that the application of the Colorado Anti-Discrimination Act to its business is a regulation of "pure speech." Given the actual analysis of Wooley, that's understandable. But if I'm right that the Wooley majority doesn't really give a persuasive answer to the contention that there is no serious risk of false attribution when everyone knows that the speech is compelled, then it shouldn't matter whether baking a wedding cake is pure speech, speech mixed with conduct, or pure conduct. Whatever it is, there is no serious communication to others problem. And whatever it is, there can be an internal harm.
But now Masterpiece Cake Shop finds itself in an uncomfortable position. If the real harm occurs because of how the "cake artists" feel about making a cake for a same-sex wedding, regardless of what anyone else thinks about it, then the same sort of real harm can occur when people who oppose same-sex marriage (or neo-Nazis for that matter) provide any kind of goods or services to a couple celebrating a same-sex marriage (or to neo-Nazis). That's an uncomfortable position--indeed a completely untenable one--because if taken seriously it appears to give anybody who doesn't want to comply with a public accommodations law the ability to opt out.
What's the solution? I'll consider four possibilities.
1) Wooley is right as to both result and rationale. If so, Masterpiece Cake Shop should have a difficult time winning (assuming the Court applies the precedents in good faith, which one can hardly take for granted). In Wooley the Court had to explain why potentially objectionable mottoes on the money ("In God We Trust") are not necessarily compelled speech, given its holding that the motto on a state-issued license plate is. The Court's answer, reasonably enough, is that there is a strong connection between a motto that the state places on your own car versus the motto it places on money, which by design goes from person to person. By that logic, a cake baked for someone else does not sufficiently implicate Masterpiece Cake's own speech to count as compelled speech.
2) Wooley is wrong in both rationale and decision; Blasi and Shiffrin are also wrong, because otherwise the internal harm caused by government compulsion gives everyone and his uncle the ability to opt out of their legal obligations. Masterpiece Cake Shop loses in this scenario, but it is highly unlikely that the Court would overrule Wooley. And for the record, I would not want Wooley overruled. It--as an application of the Pledge-of-Allegiance case, West Va State Bd of Educ v. Barnette--strikes me as stating an important free speech principle.
3) Wooley is rightly decided but the rationale is wrong, whereas Blasi and Shiffrin are right. In order to avoid the limitless expansion of the Blasi and Shiffrin rationale, it is limited to cases in which the particular activity at issue is expressive. This approach avoids the floodgates problem. Whether Masterpiece Cake Shop wins or loses depends on how expressive one thinks baking a cake is and what one deems the appropriate threshold for what counts as sufficiently expressive. The analytic difficulty here, as I've noted, is that whether an activity is expressive has very little if anything to do with the nature of the internal harm.
4) A variation on 3). Now Wooley is rightly decided but the rationale is wrong, whereas Blasi and Shiffrin are partly right. Their theory explains why there is harm even when there isn't a substantial risk of others thinking that the "speaker" sincerely believes the compelled message, but we only apply it in cases in which the government aims at curtailing or compelling speech. Cases like Barnette and Wooley are rightly decided because in those cases the government program is explicitly a program of compelled speech. By contrast, the application of a general anti-discrimination or public accommodations law to activity that happens to be expressive would not trigger the same kind of scrutiny for the simple reason that such a law is not an attempt to establish a government orthodoxy in the way that the laws in Wooley and (especially) Barnette were. Under this approach--which I favor--Masterpiece Cake Shop loses because the anti-discrimination interest readily satisfies the watered-down scrutiny that applies to cases of this sort. The chief disadvantage of this approach is that the Court hasn't always followed it, although as I have argued (here and here), the cases that depart from this approach seem deeply flawed.
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10 comments:
As I understand Masterpiece's petition-stage briefs, they are *not* making any argument about the audience misperceiving their message, or thinking that they have "endorsed" same-sex marriage. (Their argument is not, in other words, analogous to the law schools' argument in FAIR.) They are, instead, arguing that (i) they are involved in creative activity protected by the First Amendment; that (ii) that activity does, inevitably result in a product that "celebrates" the marriage; and that (iii) they are thus being forced to *articulate,* or attest to, something that they do not believe (indeed, that they think is immoral). So it's closer to Barnette, on their view -- with the major distinction, which you mention, that here, unlike in Barnette (and unlike the Court's description of what New Jersey did in Hurley), the state is not aiming at compelling any such affirmation: Indeed, as far as Colorado is concerned, it doesn't matter whether it's a cake or the rental of tables or a sound system. So in that sense, it's like O'Brien, except that here the application of the law compels (rather than restricts) "inherently" expressive activity, not merely conduct that happens to be expressive in a particular case.
The basic question in your post, then, as I understand it, is why we should care about forcing someone to say something they don't believe where (i) there's no risk of misperceived endorsement and (ii) the state's interest is not speech-related. I'm inclined to agree with you that we shouldn't. But surely, there's *something* to the notion--or at least it's a strong intuition that Masterpiece is trying to exploit--that it's more (constitutionally?) problematic to require someone to say something they don't believe than "merely" to require them to be involved, in a nonexpressive way, in activity of which they do not approve.
P.S. I realize that some readers might reject Masterpiece's premise, i.e., that the custom-made cake expresses anything more than does, e.g., a pot roast. Let's put that dispute aside, however, for purposes of Mike's question. Assume, for example, that Masterpiece refused to *write* on the cake “Congratulations Dave and Charlie” whereas it *would* write “Congratulations Dave and Charlotte”--a form of discrimination that the injunction in this case would prohibit.
Wooley v. Maynard:
"We are thus faced with the question of whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public."
A public accommodation is not "private property" to my understanding and surely not private property akin to a person's car.
As noted in #4, yes, anti-discrimination laws are also not "government orthodoxy" in respect to "dissemination of an ideological message." A motto is a clear "ideological message," words and everything, while anti-discrimination laws regulate action. To the extent this requires unwanted action, long practice recognizes it is acceptable to require it in public accommodations (requiring me to bake a cake for someone is different; I don't run a cake-shop).
To quote the opinion again:
"We must also determine whether the State's countervailing interest is sufficiently compelling to justify requiring appellees to display the state motto on their license plates."
The reasons offered are trivial to balance concerns about coerced speech. The "facilities the identification of passenger vehicles" surely doesn't require the motto. The other is promotion of the state's message. Again, that's fairly trivial, especially given the ways it can be done. Here, we are dealing with promotion of equality in public accommodations. More compelling interest and exceptions are much more problematic. And, again, it is not purely "private."
That to me is the core difference though the rest has importance in certain cases.
There is problems with the audio of the column.
The statutory approach seems sensible. Certain state constitutions also to my understanding have been interpreted to cover more ground than the First Amendment here; for instance, more rights to protest at "private" shopping malls.
An exception is suggested for hate speech. That's an open-ended matter ("punching Nazis" has its own meme) and I'll just say it would require care. If specific people are targeted, it is less concerning to me personally in the current context. But, general hate speech? That concerns me if we are going to explicitly have Congress make an exception, which in effect endorses censorship.
Is a pastry chef more creative that a chef, a chef du cuisine, an oyster shucker, etc? Yes, bakers compete in accommodating the public. So do restaurants. Creativity fosters competition, which leads to progress. Masterpiece's resistance is in a sense creative destructionism, perhaps first coming for the LGBT community, then the [fill in the blank] community.
Thanks for these interesting comments. Let me just add a word in response to Marty's suggestion that " there's *something* to the notion--or at least it's a strong intuition that Masterpiece is trying to exploit--that it's more (constitutionally?) problematic to require someone to say something they don't believe than "merely" to require them to be involved, in a nonexpressive way, in activity of which they do not approve."
I think that the parenthetical "(constitutionally?)" does a lot of the work in this intuition. There's a constitutional issue with compelling speech in a way that there isn't such an issue when the state compels non-expressive conduct because the First Amendment protects speech but not non-expressive conduct. But it is not obvious that, as a matter of first principle, compelling speech is a more serious infringement on liberty than compelling non-expressive conduct--at least where, as here, the compulsion arises out of a law that does not target expression.
I can certainly think of instances in which the compelled non-expressive conduct would be the greater infringement. Suppose that Steve believes that women taller than 6'2" are disgusting, but that the state in which he lives forbids places of public accommodations from discriminating on the basis of height. If Steve is a baker who is thus forced to bake a cake topped with the words "Congrats Sheila on topping 6'3" ", Steve will experience less of an infringement on his liberty than if he is a massage therapist required to give Sheila a massage.
If that example is too silly, consider the adage that actions speak louder than words or sticks and stones may break my bones but names will never hurt me. I think there are good reasons to have a First Amendment that protects expression especially, but I'm not persuaded that they are implicated by a case like Masterpiece Cake Shop.
I'll leave the law to you, but I'll just add this: I find the argument that "the First Amendment doesn't apply to private actors" unsatisfying on various levels. For one thing, it isn't always true: recipients of Federal aid may be subject to it even if otherwise "private." It also ignores, let us say, the "penumbra" of First Amendment jurisprudence and its implications for the broader society. If Google (say) decided to shut down anyone who called President Trump an "authoritarian" or a "fascist" I think most people would see this as a serious problem even if they were comfortably within their legal rights to do so. I simply don't trust a couple of hundred people in Northern California, who don't pay many taxes and have a terrible record on diversity, to decide what I can and can't hear. I don't think that you disagree with this, but I think lawyers sometimes get a little too clever here, missing the forest for the trees, or the substance for the form, or whatever the right analogy is. Where's Prof. Unger (the "hierarchy of smart alecs") when you need him?
The 1st A specifically proscribes Congress. The 14th A proscribes states via incorporation of the 1st A. Is Michael proposing a constitutional amendment? If so, I wonder how it might be worded.
I should have mentioned that the 1st A seems to proscribe the Executive Branch although it is not mentioned. I don't know if it proscribes SCOTUS. But proscribing beyond this to Google seems a big hurdle.
Michael Livingston said...
The federal aid thing would involve the government. I'm not sure how the "penumbra" argument works in this context. You should be more comfortable about California, since its law does do more to restrain "private" (and that term is misleading when dealing with Google etc. without carefully stating terms) parties.
But, Prof. Dorf did address that issue, citing as well countries with a stricter policy. Plus, Dorf suggests Congress can/should pass a regulation generally making the actors here common carriers.
Plus, yes, people sometimes are too well let's say lawyerly here & say "well this doesn't involve the government, not free speech!" But, free speech is a general good; it does have different applications when the government gets involved. If a private high school keeps out Mark Twain, "free speech" fairly can be raised. But, legally -- and receipt of federal funds very well can change matters as it does in the discrimination context -- a public high school is treated different.
(And, let's not even go into the complications of a religious high school!)
I basically agree with your reply to Professor Lederman. I am not interested in originalist interpretations of the First Amendment, and I basically view the First Amendment or First Amendment doctrine as a mistake; I could imagine a variant of First Amendment doctrine that limited the First Amendment to political speech and in doing so drew a distinction between expressive activity and non-expressive activity that made sense, but once the First Amendment moved into a more personal and libertarian realm - as it had to, to at least some extent - special protections for speech as distinct from other sorts of self-definition become hard to justify. (The same is true of the religion clauses.) Of course, doctrine has made up for this sort of incoherent expressive libertarianism by creating reproductive rights and sexual rights and parenting rights under the heading of substantive due process, which I support, but there's still a pretty large asymmetry between speech and other things. Nevertheless, like most non-originalists (including you, apparently), I'm at least interested enough in the text of the Constitution to think the First Amendment is limited to speech, however defined, and doesn't protect non-expressive things that ought to be protected for the reason that speech ought to be protected.
Now, one certainly could, in the name of ameliorating some of the incoherence that the First Amendment engenders, say that the First Amendment only protects speech that listeners understand to be the speaker's own, and thus do away with the compelled-speech doctrine rather than barring compelled speech but not other sorts of compelled activities that are internally harmful in just the same ways that compelled speech is. In the first place, I might care enough about the First Amendment's text to say that while that kind of subjectivism might be a good idea, the First Amendment clearly protects the freedom of speech, not the freedom to engage in the subset of speech that appears to be the speaker's self-willed speech. In the second place, I'd rather have incoherent half-protections against compulsion than none. Here too I think I'm in agreement with you, at least as to the second point.
As to Masterpiece Cakeshop, while I agree with you that they should lose, I'm probably less confident than you about how the case should come out on some of the possible views of Wooley you separate out. As to Wooley's being right in result and rationale, I don't think a cake is like a coin. Masterpiece Cakeshop doesn't use the cake and pass it on to the buyer; it designs and makes the cake and sells it to the buyer. If the government conscripted everyone into the U.S. Mint and asked us to hand-engrave coins, I think we might feel differently about the compelled-speech implications of what they say, and even that's not as strong a compelled-speech case as the cake given that the law doesn't prescribe any particular cake design and leaves creative choices to the cakemaker. Users of a coin are not its authors or speakers, but in the case of a cake, both buyer and seller should probably be understood as its co-authors.
I'm also a little less confident that anti-discrimination laws aren't attempts to establish a government orthodoxy; one might say that they establish the orthodoxy that sexual-orientation discrimination isn't okay, but, e.g., partisan discrimination is, such that a cakemaker can refuse to make a neo-Nazism-espousing cake or even a cake of any kind for neo-Nazis. The orthodoxy here is that disfavoring gays is bad and disfavoring neo-Nazis isn't so bad. I tend to think that such a compelled orthodoxy ought to survive scrutiny and that scrutiny should be sufficiently watered-down for that kind of orthodoxy to survive it. But I tend to doubt that that sort of watered-down scrutiny is the law after cases like Reed.
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