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>>But Is It ‘Speech’?

But Is It ‘Speech’?

By Laurence H. Winer…

A Sunday “Peanuts” comic strip (from a bygone era) begins with Charlie Brown and friends on the baseball diamond. The character “Rerun,” too small to play, sits dejected on the sidelines. But when the ball bounces his way, Rerun scoops up his “souvenir” and scampers off with it. The gang immediately gives chase to retrieve their only baseball. When they catch up to Rerun holding the ball on his front steps and demand its return, Rerun responds simply “First Amendment!”

“Peanuts” creator Charles Schulz inadvertently anticipated the current trend of invoking the First Amendment as a wide-ranging sword or shield for a broad scope of claims or defenses well beyond what traditionally might have been considered matters involving First Amendment protection for freedom of expression. A majority of the Supreme Court has been abetting this development.

A few years ago, in Sorrell v. IMS Health, Inc., the Court reviewed a Vermont law that restricted the sale, disclosure, and use (with some exceptions, for academic researchers for example) of pharmacy records that reveal the prescribing practices of individual doctors. The State, supported by legislative findings, was acting in the interests of protecting medical privacy and ensuring that pharmaceutical marketing operated in the best interests of patients, public health, and reduced healthcare costs. But pharmaceutical manufacturers (and middlemen “data miners” who buy this “prescriber-identifying information” from pharmacies and analyze it in reports they lease to manufacturers) sought the restricted information about the purchasing preferences of their physician clients so their salespersons could tailor their sales efforts more effectively.

The state law, whether wise or not, seemed to be a standard sort of health and safety regulation well within the police power of the State. Writing for the Court, however, Justice Kennedy stated that on its face the law imposed content- and speaker-based restrictions on the information. Because in the Court’s view the law “burdens disfavored speech by disfavored speakers,” the First Amendment required heightened judicial review beyond that accorded purely commercial or health and safety regulation that has only an incidental burden on protected expression. Therefore, even under a moderate commercial speech standard the State was not able to justify its law.

The State’s focus on restricting commercial marketers but not other users (“speakers”) of the information weakened the State’s interests and lent some support to the majority’s approach. But the three dissenters sensibly argued against any sort of heightened First Amendment review for the economic regulation at issue which “neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product.” Indeed, portending a “rewaken[ing]” of the Lochner pre-New Deal era, the dissenters feared the Court might be opening “a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message.”

Indeed, last term in Expressions Hair Design v. Schneiderman the Court dealt with a New York law regulating differential pricing by merchants who charge customers using credit cards more than those paying cash. This can be accomplished, once a “regular” or base price has been set, either by imposing a surcharge on users of credit cards or offering a discount to those paying cash. New York prohibits the surcharge approach, which many merchants favor as a transparent way to pass on to customers the transaction fees they must pay to credit card companies.

The New York law, whatever its merits, seems to be simply price regulation. But the merchants successfully turned it into a First Amendment case by arguing the State was restricting how they could communicate their prices – namely, they cannot post a cash price together with an additional credit card surcharge. The Second Circuit held that price controls regulate conduct, not speech, and therefore found no First Amendment problem. Five Supreme Court justices, however, agreed the statute regulates the communication of prices rather than just the prices themselves. But the Chief Justice’s short majority opinion declined to specify the appropriate level of First Amendment scrutiny and remanded to the Court of Appeals for that initial analysis.

Concurring in the judgment for a remand to clarify how the statute operates, Justice Breyer agreed that the statute regulates speech but only because “virtually all government regulation affects speech. Human relations take place through speech. And human relations include community activities of all kinds – commercial and otherwise.” Breyer surely is right that too reductionist an approach can turn almost any regulation into one about restricting “speech” – that some term the “speech-ification” of all laws. Rather than trying to distinguish “speech” from “conduct,” he prefers asking “whether, or how, a challenged statute, rule, or regulation affects an interest that the First Amendment protects.” Like any analytical approach, this too has its difficulties, but at least it appropriately maintains the focus on underlying First Amendment values.

As the dissent in Sorrell noted, these cases illustrate for some the advent of “First Amendment Lochnerism” – using the First Amendment to advance a more laissez-faire regulatory regime just as substantive due process once supported a libertarian challenge to economic regulation. Despite recent efforts to rehabilitate Lochner, we know the reactions that opinion eventually provoked. But now this approach is being invoked at the heart of the culture wars as well. One of the most visible and contentious cases of the current term, with the Supreme Court back to full strength, is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

A gay couple in Colorado, where same-sex marriage was not yet legal, planned to be married in Massachusetts. They asked the owner of Masterpiece Cakeshop to create a cake for them to use in a later celebration with friends in Colorado. The owner refused, citing his deep religious beliefs that he felt precluded him from “displeas[ing] God” by using his professional talents to create a cake for such a purpose, though he offered to make and sell the men any other baked goods. The couple took their business elsewhere, but the bakery owner was found to have violated Colorado law by discriminating against them based on sexual orientation in a place of public accommodation (his business).

Under current federal and Colorado state law, the baker faces some difficulty in relying on his free exercise of religion to challenge the religiously neutral and generally applicable Colorado anti-discrimination law. So even in the Supreme Court he largely is asserting a free speech claim. That is, he argues that his artistic expression in creating wedding cakes constitutes pure speech or amounts to expressive conduct as the cakes inherently convey a celebratory message about marriage. Thus, the application of the anti-discrimination law to him in this context compels his speech in violation of the First Amendment. Not surprisingly, the Colorado court rejected this claim, ruling that the conduct of creating a wedding cake is neither sufficiently expressive nor an endorsement by the baker to warrant First Amendment protection.

The Colorado court recognized that in some circumstances a custom wedding cake could “convey a particularized message celebrating same-sex marriage” and so implicate First Amendment protection. But here there was never any discussion among the parties of any particular design or written description on the cake. It was just a cake. Still, in the Supreme Court the baker is stressing the artistry involved in his cake creations, which he claims become the “iconic centerpiece of the marriage celebration.” In his amicus brief supporting the baker, the Acting U.S. Solicitor General goes so far as to assert that a “custom wedding cake [] is inherently communicative. … [I]ts function is more communicative and artistic than utilitarian.”

Really? If so for a cake, where along the continuum of inherent expressiveness would one place each of the potential wedding vendors one can imagine: the jeweler who designs the wedding bands; the photographer; the florist; the caterer; the fashion designer; the musicians; the limousine driver; the venue proprietor; and so on. Some of these may seem to have more plausible answers than others, but we can always tweak the facts – the limousine might be decked out with a rainbow-colored flag and a “Congratulations” banner. Better to channel Freud – sometimes a cake (even a wedding cake) is just a cake – and leave such issues to the more appropriate religion side of the First Amendment.

Some people argue that we somehow denigrate the First Amendment’s protection for free speech by applying it to allegedly “low value” speech such as sexually explicit or graphically violent expression. But trusting legislatures or courts to make and apply value judgments about any type of speech without strict constitutional protection is too impossibly subjective and dangerous. As Justice Harlan so eloquently stated about the infamous jacket worn in a courthouse corridor, “one man’s vulgarity is another’s lyric … [W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”

But determining what is within the genre of “speech” for purpose of First Amendment protection is of a different order – certainly not without difficulty, especially in the information age of digital data, but a necessary and more objective exercise. If everything may constitute such “speech” – the object of all manner of economic, social, and police power regulation – then actual speech will lose its specialness. And it is the very specialness of speech that long has allowed it to enjoy the singular protection so vital to the interests of fostering democratic self-government and individual autonomy. Charles Schultz’s Rerun may not have appreciated the import of what he was saying, but we can. And we should not lightly jeopardize the extraordinary status real speech enjoys in our constitutional, political, and cultural scheme.


Having spent over 30 years teaching and writing about the First Amendment at the Sandra Day O’Connor College of Law at Arizona State University, Professor Emeritus Laurence H. Winer has traded the desert for the ocean and now is living in Marblehead, Massachusetts.

By | 2017-10-18T10:25:57+00:00 October 18th, 2017|First Amendment Trends|Comments Off on But Is It ‘Speech’?