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.