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You can’t say that

One of the more interesting complaints from conservatives about the Portland wedding bakery case – the bakers who declined to sell pastry for a lesbian wedding – concerns a specific provision in the state order about what the baker can say about it.

It cannot say, the state said, that it will not provide services for gay weddings. Specifically, it said, it must “…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.”

On its face, this sounds like a first amendment violation. How is it, or is it, justifiable?

California law professor Eugene Volokh takes on exactly this subject in a recent blog post, and draws a careful distinction:

The bakers have a flat free-speech protection if they want to say, “we disapprove of the Oregon decision,” or “we disapprove of same-sex marriages,” he said.

What they cannot do is say that “we won’t do same-sex marriage, same-sex wedding cakes” because doing so isn’t legal. It becomes “essentially a true threat of illegal conduct.” And threats of illegal conduct (it becomes most obvious in the case of threats of violence, but other conduct can be covered too) are themselves illegal.

It’s a little subtle, but the point is clear.

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