POLITICS

Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers

By ADAM LIPTAK NOV. 6, 2017

WASHINGTON — Floyd Abrams is the nation’s most prominent First Amendment lawyer, and he almost always argues in favor of free speech. But he has struggled with the case of a Colorado baker who refused to create a wedding cake for a gay couple. ... Charged with discrimination, the baker said that forcing him to bake a cake for a same-sex wedding would hijack his constitutional right to express himself. Mr. Abrams’s first impulse was to agree.

“At first blush, the position of the baker had a good deal of appeal to me,” he said. “There was and is no reason to doubt his position was one of conscience, and the visage of state-ordered creation of what could be viewed as some sort of artistic offering certainly set some First Amendment flags flying.”

“But the more I thought about it,” Mr. Abrams said, “the more I thought of other possibilities. Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people? Could a musician invite the world to his studio where he wrote songs about them for a fee but refused to do so for Jews or Muslims? The First Amendment protects a lot, but not that conduct.”

In the end, Mr. Abrams signed a brief supporting the gay couple, David Mullins and Charlie Craig. It was one of close to 100 friend-of-the-court briefs filed in the case, an extraordinary number. Among the most interesting ones are from deeply committed First Amendment experts who have struggled to find the right balance between protected expression and unlawful discrimination. ... The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, will be argued before the Supreme Court next month. It has tested deep and longstanding commitments to free speech, and it has divided old allies.