Justice Anthony Kennedy’s Free Speech

Not directly, because this Oregon law predates Kennedy’s Obergefell ruling, but this is the inevitable outcome of his ruling on free speech.

Aaron and Melissa Klein, bakers who refused to make a cake for a same-sex wedding, lost in an Oregon court and have been ordered to pay $135,000 in “emotional damages” to the couple for whom they refused the baking. Administrative Law Judge Alan McCullough, who found for the victimhood couple, ordered the fine, but nothing further.

However, Brad Avakian, Oregon’s Labor Commissioner and Политический Руководитель, and for whom this Administrative Judge works, overruled the omission. On hearing that the Kleins had assured Oregonians in an interview with the Family Research Council that they intended to pursue the matter, he ordered them to speak no further. He gagged them.

So much for freedom of speech in Oregon. So much for freedom of religion in Oregon. Look for this sort of thing to accelerate in the wake of Kennedy’s ruling.

4 thoughts on “Justice Anthony Kennedy’s Free Speech

  1. You should read the order (here: http://www.oregon.gov/boli/SiteAssets/pages/press/Sweet%20Cakes%20FO.pdf) and also maybe this article from the Volokh Conspiracy: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/06/why-may-the-government-ban-businesses-from-saying-we-wont-bake-cakes-for-same-sex-weddings/. From news reports, I thought this was a gag order as well. It’s not. It forbids them from advertising they don’t serve gays. Displaying an advertisement saying you refuse to provide service to a protected class violates Oregon law. Sexual orientation is a protected class under Oregon law.

    • The problem with the order, though, is that it’s centered on remarks made, both on the note posted on the business’ door and in interviews, that the Kleins intended to stand by their faith and to continue their struggle to be free to practice their faith. That’s not advertising.

      It’s certainly true that there is a broad gray area between such remarks and advertising, but it seems to me that in the case of such doubt, the presumption must be in favor of free speech, not in the direction of advertising limits.

      Avakian’s order was a gag order; it wasn’t limited to advertising.

      An additional problem with the order, separate from the gag order, is the alleged denial of RBC’s and LBC’s freedom to participate equally. Of course, no such denial exists or existed, as demonstrated by the ease with which the two found two other bakers to satisfy their wedding cake wishes.

      The right to do business is a two-way street: no one has a right to force his custom onto a particular business, especially when there exists a vibrant, competitive market for that custom. Their ability to participate equally is clear. Were there not such a market, there might exist a denial of service.

      Eric Hines

      • I agree that in the statements the commissioner highlighted aren’t traditional advertising, but in the context of this case, can it really be said that what the owners were doing was not, in effect, stating they would not serve certain customers based on their membership in a protected class? Oregon has decided, as a matter of state law, that sexual orientation is a protected class. (Let’s leave aside the merits of this for now.) If a business owner goes on talk shows stating he won’t serve members of a protected class and will fight for his right not to serve those members, doesn’t that have the same effect as denying service? If he publicizes in any way that his business doesn’t serve them, isn’t the practical effect of that publication to deny service? What member of the class would then go to that business? (Leave aside for the moment activists who want to make a point; we’re talking normal people here.)

        As to equal participation, if we are going to have anti-discrimination laws, does it really make sense to enforce them based on whether there are other options? Thus, if someone owned the only bakery in town, they would be forced to serve all comers. But if there was another bakery, he could deny service to anyone he chose? That doesn’t make any sense to me. Either we enforce anti-discrimination or we don’t.

        • To your first question, they weren’t advertising, they were averring their continued loyalty to their faith. Had they then refused, again, a wedding cake to a gay couple, that would have been (accepting the statute and the precedent of Avakian’s ruling) an additional act of miscreancy and actionable. But Avakian told them they can’t even speak to their faith.

          There was no sign on their door saying, “No shoes, no shirts, no f**ts, no service.” There was only their public statements that they believed marriage to be between a man and a woman. It’s not an unreasonable assumption, especially given the well publicized (carefully so by the complainants and their supporters, according to the record) case just concluded, that the Kleins again might not serve a gay couple, but they didn’t say so, and none of their advertising said so. And that refusal–the only actionable bit–never occurred. Neither, it seems, can they serve straight couples anymore.

          Regarding your second, discrimination wasn’t the beef, denial of an ability to participate equally, which encompasses a far broader arena, was. And that denial was demonstrated to be non-existent. The complainants wound up participating fully equally, and in very short order–in the same amount of time it would have taken them to shop around and find a better price. Which they also found (ignoring the free cake, which was as much a political statement as it was an advertising device).

          Eric Hines

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