Oregon: Bakers’ Statements to National Media Were “Unlawful”

 

Most of us probably assume that if legal charges are filed against us and we consider them unjust, we have a First Amendment right to raise a ruckus in the press. But last week’s controversial Oregon cake ruling suggests that some public officials are not so sure about that.

Last week, the Commissioner of the Oregon Bureau of Labor and Industries, Brad Avakian, ordered Melissa and Aaron Klein of Sweet Cakes by Melissa to pay $135,000 in damages, primarily for emotional distress, to a same-sex couple it had turned down for a wedding cake (earlier). In addition, the ruling ordered the Kleins to

cease and desist from publishing, circulating, issuing or displaying, or causing to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

Contrary to some early reports in the conservative press, this is not really a “gag order” that strips the Kleins of “all [their] First Amendment rights,” “silences” them “from speaking publicly about not wanting to bake cakes for same-sex weddings” or even forbids them “from talking about the ruling.” But even leaving the exaggerations aside, the case includes elements that should genuinely alarm free speech advocates.

The cease and desist order is grounded in precedents in which courts have allowed government to ban certain speech that announces an intent to discriminate in violation of law. Two of the best-known examples are the posting of signs with messages like “Whites only served here,” and classified ads with headings like “Help Wanted – Female.” (Most would agree that such speech furnishes at least evidence of intent to discriminate; the closer First Amendment question is whether it can be made punishable in itself, with no need to show that it interfered with any actual transactions.) At his Washington Post blog Volokh Conspiracy, Eugene Volokh goes into more detail and concludes that courts’ willingness to uphold such bans arises from what is known as the “true threat” exception to the First Amendment, in this case a “true threat of illegal conduct.” (Many famous “true threat” cases arise from threats of violence, but it seems the category is broader than that.)

Even assuming a statement of intent to discriminate might constitute a “true threat,” there can be — as there is in this case — an awfully thin and blurry line between that and core speech protected by the First Amendment.

Suppose someone began a sentence with the words “I don’t think I should have to serve [group X] at my shop….” If they follow with the words “but since it’s the law, I’ll comply,” the sentence as a whole would clearly count as protected speech under current law. If they follow with the words “and I won’t, law or no law,” it loses protection. But suppose the speaker were to end the sentence at “…my shop.” Up to that point, the speaker has expressed only an essentially political opinion, not a forward-looking intention to defy the law.

Such speech is all the more of core First Amendment interest when it takes place not in a local, commercial context but as part of broader political discussions between citizens as to whether laws are unjust or government too heavy-handed. You might think the state needs to be at special pains not to chill or suppress this kind of broader political discussion. That might imply giving the benefit of the doubt to speech that conveys less than clear and unmistakable future intent to break the law, or speech that is primarily directed at outside audiences who are listening as citizens rather than as prospective clients (in contrast to the old no-service signs and classified ads, which could be seen as attempting to chase away part of the local customer base).

That’s not how Oregon saw it. It chose to go after the Kleins over appearances they did in national conservative media, and over having posted a sign on their closed business thanking supporters and promising to continue the fight. (They continue to sell cakes they bake at home.) Included as subjects of this complaint were national media interviews in which the Kleins, along with statements about what had gone through their mind when they turned down the lesbian couple’s request, added a few forward-looking statements such as “we can see this becoming an issue and we have to stand firm.” The window posting, meanwhile, included the language “This fight is not over. We will continue to stay strong. Your religious freedom is becoming not free anymore. It is ridiculous that we cannot practice our faith.”

Remarkably, as Scott Shackford noted at Reason, both the state agency and Avakian — see pp. 22-26 of his ruling — interpreted these statements as unambiguously announcing a forward-looking intent to discriminate in future transactions. Avakian’s ruling neither notices nor engages the objection that speech by the targets of a government enforcement action seeking to rally public support for their cause might need more careful First Amendment handling than the announcement of, say, a gender preference in a classified ad.

Even more remarkably, the state agency had demanded damages from the Kleins over the very fact of media coverage sympathetic to their cause, which was said to have inflicted further trauma on their adversaries’ eggshell psyches. While Avakian declined to grant a separate award of damages under this heading, he still declared the Kleins’ statements in their own defense “unlawful.”

The implication is clear enough: if locked in a legal battle with Oregon authorities, you may not have a legal right to rally your supporters with statements like “This fight is not over” and “We will continue to stay strong.”

You can see why the authorities themselves might find that approach convenient. But it’s not a result liberals should applaud.

[Editor’s note: Please welcome Walter Olson, Senior Fellow at the Cato Institute’s Center for Constitutional Studies and founder of Overlawyered.com, who is making his inaugural post at Ricochet]

 

Members have made 27 comments.

  1. Profile photo of Nick Stuart Inactive

    Can anybody furnish examples of “A List” liberals taking up for the Klein’s free speech rights?

    • #1
    • July 8, 2015 at 10:16 am
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  2. Profile photo of Brian Clendinen Member

    The this will eventually get overturned by higher courts. However, as always no Oregon state official will be punished for using the treat of violence and theft to punish them for practicing there religion. Until we begin to make it a crime for government officials to break the law and abuse citizen practicing there religion and free speech you will continue to see this go on more frequently.

    • #2
    • July 8, 2015 at 10:32 am
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  3. Profile photo of Leigh Member

    What the rest of the country needs to realize is that this is not simply about the Klein’s freedom to exercise their religion. This is about your freedom.

    • #3
    • July 8, 2015 at 10:44 am
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  4. Profile photo of carcat74 Member

    Welcome, Mr. Olsen!

    • #4
    • July 8, 2015 at 10:46 am
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  5. Profile photo of Walter Olson Contributor
    Walter Olson Post author

    Nick Stuart:Can anybody furnish examples of “A List” liberals taking up for the Klein’s free speech rights?

    The ruling is still only a few days old. But I hope many liberals will join in recognizing the dangers in allowing a wide swath of political advocacy to lose First Amendment protection because the authorities think it conveys some future intent to break some law.

    • #5
    • July 8, 2015 at 10:59 am
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  6. Profile photo of Basil Fawlty Inactive

    The entire wedding cake controversy could probably be obviated by a little judicious micturition.

    • #6
    • July 8, 2015 at 11:15 am
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  7. Profile photo of Scarlet Pimpernel Member

    Is anyone surprised by this? The push for gay marriage has been mostly about securing the general acceptance of homosexuality in American culture, and on making the opinion orthodox Jews, and traditional Muslims and Christians hold as repugnant as racism is to most Americans today. That being the case, such actions are quite predictable.

    Had the push for gay marriage been truly about the relative handful of Americans (as a percentage of the population. The best data we have suggests that we’re talking about less than 3% of the population. But the Pew study may be flawed by people who don’t want to be counted). who wish to obtain the legal benefits of marriage for a same sex couple it would be different.

    If this surprised Mr. Olsen, he misunderstands why this issue is a very fraught one.

    • #7
    • July 8, 2015 at 11:24 am
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  8. Profile photo of The Question Inactive

    Is it even primarily a freedom of religion question? My understanding is that, had the lesbian couple come into the bakery, and pointed to a cake in the display and said, “We’d like to buy this cake.” the Kleins would have done so. What the Kleins refused to do was to custom make a cake under the direction of the lesbian couple. Should commissioned work be counted as a public accommodation? If I’m a painter, do I have to paint anything I’m told to paint, so long as I’m given compensation? Wouldn’t that violate the 13th Amendment? I’m not a lawyer, but that’s how it looks to me.

    • #8
    • July 8, 2015 at 11:27 am
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  9. Profile photo of George Savage Admin

    The censorship effort by Oregon authorities is best viewed as part of a seamless tapestry woven to mold public opinion in the desired direction.

    To some extent, Gay Marriage is increasingly popular because to hold a contrary opinion has been anathematized. Opposition to same sex marriage is all cost and no hope of gain.

    If traditional marriage is on the way out no matter what the people think, why risk being tarred as a bigot and losing one’s career?

    In California the traditional definition of marriage prevailed in a 2008 initiative election but was subsequently struck down by the courts. Last year Mozilla CEO Brendan Eich was defenestrated for the thought-crime of donating–six years earlier–to the successful Proposition 8 campaign. At the time, Eich’s view of marriage aligned with that of noted reactionary homophobe Barack Obama.

    Our constitutional republic is being superseded by a de facto liberal ratchet. You remain free to vote and speak, but only a leftward outcome will be permitted. So get with the program, people!

    • #9
    • July 8, 2015 at 11:39 am
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  10. Profile photo of Walter Olson Contributor
    Walter Olson Post author

    Michael Sanregret:Is it even primarily a freedom of religion question? My understanding is that, had the lesbian couple come into the bakery, and pointed to a cake in the display and said, “We’d like to buy this cake.” the Kleins would have done so. What the Kleins refused to do was to custom make a cake under the direction of the lesbian couple. Should commissioned work be counted as a public accommodation? If I’m a painter, do I have to paint anything I’m told to paint, so long as I’m given compensation? Wouldn’t that violate the 13th Amendment? I’m not a lawyer, but that’s how it looks to me.

    Indeed, as Michael notes, many of these cases do raise questions of forced expression, in that the laws seek to conscript individuals into using their creative powers of communication on behalf of messages they do not wish to convey. Unfortunately, courts’ record of seeing it that way has been mixed-to-poor lately. A court did rule in April that a Kentucky t-shirt printer is not obliged under a Lexington public accommodations ordinance to create a t-shirt with whose message he disagrees. On the other hand, although the Cato Institute (with which I’m affiliated) argued that wedding photography is a form of creative expression that should also enjoy First Amendment protection, the New Mexico courts ruled that public accommodations law could properly be used against the defendant in the Elane Photography case.

    • #10
    • July 8, 2015 at 11:43 am
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  11. Profile photo of PHCheese Member

    If I was a baker and wished not to bake a cake for a homosexual wedding, I would put up a sign something to this effect. “Order wedding cakes at your on risk. Cake baking and decorating are an art that is subject to my mental well being. My well being is disturbed when I think my principals are being assaulted. All orders must be paid in advance.” Thank you.
    Your Christian Baker

    • #11
    • July 8, 2015 at 11:48 am
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  12. Profile photo of Walter Olson Contributor
    Walter Olson Post author

    Ken White, at the blog Popehat, has an excellent post up reaching many of the same conclusions I did. It reminds me that I should correct one detail above: it is not quite accurate for me to have said that Commissioner Avakian “neither notice[d] nor engage[d]” the counter-arguments about protecting political advocacy. He did throw in a wholly unconvincing boilerplate disclaimer — belied by the actual substance of his ruling — about how he had no intent of trampling such advocacy.

    • #12
    • July 8, 2015 at 12:02 pm
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  13. Profile photo of Seawriter Member

    Basil Fawlty:The entire wedding cake controversy could probably be obviated by a little judicious micturition.

    Nah. You should bake the cake. Trip bringing it in, so it ends up on the floor. Then sue the couple demanding you bake it for creating a hostile work environment.

    Seawriter

    • #13
    • July 8, 2015 at 12:28 pm
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  14. Profile photo of Scarlet Pimpernel Member

    By the logic of this decision, as far as I can tell, the legal authority to preform marriages is granted by the state, therefore ministers, rabbis, imams, etc. have no right to decide whether to sanction a given marriage.

    • #14
    • July 8, 2015 at 12:45 pm
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  15. Profile photo of Walter Olson Contributor
    Walter Olson Post author

    Scarlet Pimpernel:By the logic of this decision, as far as I can tell, the legal authority to preform marriages is granted by the state, therefore ministers, rabbis, imams, etc. have no right to decide whether to sanction a given marriage.

    It is worth noting as background that no legal marriage was taking place in this case, and that the dispute arose at a point when Oregon law did not allow for same-sex marriage. The legal issues here arise from discrimination law, not marriage law.

    • #15
    • July 8, 2015 at 12:51 pm
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  16. Profile photo of Scarlet Pimpernel Member

    Walter Olson:

    Scarlet Pimpernel:By the logic of this decision, as far as I can tell, the legal authority to preform marriages is granted by the state, therefore ministers, rabbis, imams, etc. have no right to decide whether to sanction a given marriage.

    It is worth noting as background that no legal marriage was taking place in this case, and that the dispute arose at a point when Oregon law did not allow for same-sex marriage. The legal issues here arise from discrimination law, not marriage law.

    That makes it worse, and demonstrates the seriousness of the problem. The Courts decided that people were not within their rights to believe that the law of their state was reasonable.

    It might be that we have traditionally allowed ministers to choose at which weddings they will officiate. But we have a living constitution. And marriage was, until quite recently, always understood to include one man and one woman under American law. If the Courts can decide that is irrelevant, they can do the same to other matters with a long history.

    • #16
    • July 8, 2015 at 1:02 pm
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  17. Profile photo of Mendel Member

    Welcome Mr. Olson! And thank you for providing a more precise and nuanced look at this question, which is a fine respite from the oversimplified howls of “gag order”.

    I think we tend to fall into the trap of intuitively viewing our rights – especially those enshrined in the Bill of Rights – as absolute, and thus view even arguably justified (and limited) attempts to restrict them as being full-on revocations of those rights. But the “Only whites served here” example provides a good example of when some curtailing of public speech may be defensible.

    But this also points out the real issue: if state authorities are going to exercise their power to curtail speech for justifiable reasons, they need to do so in the clearest and most limited manner possible. This Oregon commission should have spelled out precisely which types of statements were prohibited, instead of issuing such a blanket and overarching order.

    Even if “no right is absolute”, any limitations on those rights need to be as transparent and clear-cut as possible.

    • #17
    • July 8, 2015 at 1:17 pm
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  18. Profile photo of Scarlet Pimpernel Member

    Well. For most of American history, most business owners had the right to refuse service to anyone for reasons good and bad. Certain businesses did not have that right because they were monopolists or close to it.
    To fight the evils of segregation and of racism, America turned away from that robust idea of the freedom of association. Nowadays, most Americans think that regulating who one must do business with is a regular function of government, and not an exception to the general rule that we are free to associate with whomever we choose.
    In other words, the 1964 Act, and those that have followed it, have changed the American understanding of liberty.

    • #18
    • July 8, 2015 at 2:04 pm
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  19. Profile photo of Dietlbomb Member

    Walter Olson:The cease and desist order is grounded in precedents in which courts have allowed government to ban certain speech that announces an intent to discriminate in violation of law. Two of the best-known examples are the posting of signs with messages like “Whites only served here,” and classified ads with headings like “Help Wanted – Female.” (Most would agree that such speech furnishes at least evidence of intent to discriminate; the closer First Amendment question is whether it can be made punishable in itself, with no need to show that it interfered with any actual transactions.)

    Even assuming a statement of intent to discriminate might constitute a “true threat,” there can be — as there is in this case — an awfully thin and blurry line between that and core speech protected by the First Amendment.


    Remarkably, as Scott Shackford noted at Reason, both the state agency and Avakian — see pp. 22-26 of his ruling — interpreted these statements as unambiguously announcing a forward-looking intent to discriminate in future transactions.

    This is clearly insane.

    Anti-discrimination laws should be tailored so that they do not tread on citizens’ rights to speech, religion, liberty, or property. If not, they should be struck down as unconstitutional.

    • #19
    • July 8, 2015 at 4:49 pm
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  20. Profile photo of MJBubba Member

    Welcome, Walter Olson.

    This was discussed, as a “gag order” on the member feed at a post by Commodore BTC last Friday:

    https://ricochet.com/can-someone-explain-how-gag-orders-are-constitutional/

    There were some questions in the comments, so I tried to provide some information about the case of Sweet Cakes by Melissa at my post:

    https://ricochet.com/sweet-cakes-oregon-bakery/

    • #20
    • July 8, 2015 at 4:49 pm
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  21. Profile photo of BuckeyeSam Member

    These people are fascists. And I don’t give a rat’s [redacted] what anyone says. Although my objection to your race, gender, or national origin is abhorrent, my objection to your homosexual conduct is not.

    • #21
    • July 8, 2015 at 6:43 pm
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  22. Profile photo of Dorothea Inactive

    Nick Stuart:Can anybody furnish examples of “A List” liberals taking up for the Klein’s free speech rights?

    Civil disobedience would be in order. Simply refuse to pay the fine. I am sure tolerant Big Gay will understand.

    • #22
    • July 8, 2015 at 10:24 pm
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  23. Profile photo of Doctor Robert Member

    Dorothea has the answer. All of us have to hang together on this. Utter civil disobedience in this cases will take them away.

    • #23
    • July 8, 2015 at 10:48 pm
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  24. Profile photo of Dorothea Inactive

    Doctor Robert:Dorothea has the answer. All of us have to hang together on this. Utter civil disobedience in this cases will take them away.

    Tolerant Big Gay understands this issue. If they are true, they will not ask Catholic priests to bless that stuff.

    • #24
    • July 8, 2015 at 10:58 pm
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  25. Profile photo of Doug Watt Member

    I have lived for years in the Portland Metro area. The antics of Oregon bureaucrats come as no surprise. Some people think the television show Portlandia is a comedy, it is not, it is a documentary.

    • #25
    • July 9, 2015 at 6:16 am
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  26. Profile photo of Old Bathos Member

    Speaking of that fascist idiot, Brad Avakian, did somebody hack his Wikipedia entry? This is what is says now (emphasis to last line added):

    Bradley Paul “Cheese Wiener” Avakian (born February 4, 1961) is the Commissioner of the Oregon Bureau of Labor and Industries. He was appointed by Governor Ted Kulongoski on April 8, 2008 and subsequently elected statewide on November 4, 2008.[1] He was re-elected in 2012 and 2014.

    While the Commissioner of Labor and Industries has been a nonpartisan position since 1995,[1] Avakian previously served in both houses of the Oregon Legislative Assembly as a Democrat. He was and still is, the only male in the history of either house, that pees sitting down.

    • #26
    • July 9, 2015 at 7:38 am
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  27. Profile photo of Basil Fawlty Inactive

    Old Bathos:Speaking of that fascist idiot, Brad Avakian, did somebody hack his Wikipedia entry? This is what is says now (emphasis to last line added):

    Bradley Paul “Cheese Wiener” Avakian (born February 4, 1961) is the Commissioner of the Oregon Bureau of Labor and Industries. He was appointed by Governor Ted Kulongoski on April 8, 2008 and subsequently elected statewide on November 4, 2008.[1] He was re-elected in 2012 and 2014.

    While the Commissioner of Labor and Industries has been a nonpartisan position since 1995,[1] Avakian previously served in both houses of the Oregon Legislative Assembly as a Democrat. He was and still is, the only male in the history of either house, that pees sitting down.

    Wikipeedia?

    • #27
    • July 9, 2015 at 7:56 am
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