If I Knew You Were Coming I’d Have Baked A Cake. Or Maybe Not.

Masterpiece Cake Shop, Ltd. and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, U.S. Supreme Court Docket No. 16-111.  Petition for Certiorari granted June 26, 2017.  Petitioners’ Brief and Joint Appendix due August 31, 2017.  Respondents’ merits briefs due October 23, 2017.

In the upcoming term the Supreme Court will review a dramatic clash featuring constitutional promises, the Court’s own precedents, and state civil rights statutes, administrative bodies, and courts.  The Court’s docket frames the question for decision to be whether applying Colorado’s public accommodation law to compel Masterpiece Cake Shop and Phillips to create expression that violates Phillips sincerely held religious believes violates the Free Speech or Free Exercise Clauses of the First Amendment.

What Has Happened So Far?

Craig and Mullins, two potential customers of Masterpiece Cake Shop, Ltd., is owned and operated by Phillips and his spouse, filed administrative charges concerning the Colorado baker for sexual orientation discrimination when Phillips declined, on religious grounds, to create a cake celebrating their same-sex marriage.

The Colorado Commission Against Discrimination agreed with Craig and Mullins and ordered Phillips to create wedding cakes for same-sex marriages, to train his staff to do so, and to report to the state when any order was declined.

The Colorado Court of Appeals found cake creation to be conduct unprotected by the Free Speech clause. Moreover, no Free Exercise violation could e found in requiring compliance with neutral and generally applicable anti-discrimination laws.

The Colorado Supreme Court declined further review, and the petition to the U.S. Supreme Court for certiorari ensued.

What Can Be Expected at the Supreme Court?

Phillips will argue that his custom cakes are art, that artistic creation is speech, and that the state cannot compel speech.  Phillips has asked the Court to review the limits of the speech/conduct dichotomy, in which the former is protected by the First Amendment, while the latter is not.  Phillips underscores the importance of this examination where, he asserts, the federal circuit courts of appeal are in conflict concerning the meaning of “expression.”  Finally, Phillips observes that his Free Exercise Rights are jeopardized where others are not required to produce customer cakes but he faces punishment if he, on the basis of his religious beliefs, will not.

Respondents Craig and Mullins will argue that there should not be any Free Exercise exemption from the antidiscrimination statutes that are both generally applicable and of great social policy import to the country. Moreover, the First Amendment Speech Clause holds no promise of freedom to discriminate.  In fact, they will say, the First Amendment’s speech protections are not in issue at all, as baking a cake is constitutionally unprotected conduct, not speech.

The Colorado Civil Rights Commission, as administrative and adjudicative body concerning the state’s public accommodation law, will argue that these statutes embody the highest of compelling state interests and, as such, are insulated from First Amendment exceptions. Moreover, the state agency will argue, Phillips’ compelled speech argument is not supported within the record.

The civil rights administrative body observes that Phillips refused to create a custom wedding cake was categorical, on the basis of their status, and was made without reference to any “compelled” design features.  Philips’ outright refusal violated the public accommodations law without reference to any process which might involve First Amendment protections.

The conflicts among federal courts that the petitioners perceive are illusory, the Colorado agency asserts, and this is true whether the uniform applicability of anti-discrimination laws or the meaning of “expression” is in issue.

Finally, the state agency argues, the Supreme Court’s precedents concerning compelled speech are not in issue where the record finds that conduct, not expressive speech, is in issue.  Adherence to general non-discrimination laws is distinguishable from any state requirement to profess the any government message.

Is That All?

At its core this case invites the Supreme Court to establish a “pecking order” among the freedoms guaranteed by the First Amendment and those promised by the civil rights laws.  If that seems a tall order, that is because, without a doubt, it is.  Ideally all facets of such significant laws would work together to accommodate the others, but advocacy does not proceed in an ideal world.

It would not be surprising if the case were to command a good bit of the Court’s and the public’s attention.  With respondents’ briefs not due until the third week of October, and with phalanxes of amici anticipated, and with the potential for reply memoranda to be submitted, it may not be until 2018 that oral argument is held, with no opinion to be forthcoming until the end of the term.   This last is but prognostication.  As with all things in the current legal realm, anything is possible.

Certiorari Submissions:

16-111 Cert. Petition Masterpiece Cake _Phillips

16-111-Brief Opposing Certiorari Mullins _Craig

16-111-Brief Opposing Certiorari CCRC

16-111 Cert. Reply Masterpiece Cake _ Phillips

20170512 Letter re. Supplemental Authority









Protective Order Banning Internet Activity Violates First Amendment, New Mexico Court of Appeals Has Found

Best v. Marino. No. 34,680 (N.Mex. App.) June 27, 2017.

Following deterioration of the parties’ friendship, Best sought a protective order to inhibit Marino from email contact and derogatory online postings.  Marino continued to engage in online contacts, was held in criminal contempt, sentenced, and directed not to use the internet except to contact her attorney or accountant.

The procedural posture of the case offers practice pointers.   Review of an order of protection is by appeal, and not by collateral attack such as the review of the contempt proceedings here.

The appellate court was disinclined to rule on Marino’s argument that she did not understand that the protective order included online contacts.  The order prohibited abuse activity likely to induce emotional harm, which a reasonable person would understand to include online activity.  Moreover, the argument that website and Facebook messages about Best were not intended to reach him were dismissed as disingenuous.

Marino’s argument that the state may not sanction online activity because it is protected speech must fail, because the state may circumscribed unprotected speech such as threats, speech incident to a crime, and other matters.   Substantial interests may be circumscribed based on past behavior.

Nonetheless, the prohibition of almost all internet activity was found to be an unconsittuional prior restraint.  Such a broad restriction supporting the compelling state interest of inhibiting harm to citizens fails strict scrutiny, as it is not the least restrictive means of supporting that interest.  Restrictions on Marino’s access to the internet were lifted with the understanding that all other components of the protective order remain in effect.

Best v. Marino (N.M. App., 2017)


No Reason Found to Permit Anonymous Proceedings in Potential Class Action Concerning Communications Privacy

A. Michael v. Charter Communications, No. 4:17 CV 1242 (JMB) (E.D. Mo.) June 30, 2017.

Charter Communications moved to dismiss this putative class action challenging defendant’s privacy practices concerning customer information because, among other matters, plaintiff failed to identify himself.

Federal Rule of Civil Procedure 10(a) requires identifications of parties to a suit.  This is more than administrative matter:  it serves the public interest  The First Amendment protects the promise of public proceedings by requiring identification of the persons involved, permitting proceeding anonymously only where substantial privacy interests are involved, such as challenges to government activity required disclosures of intimate information, or disclosure of information that would invite criminal prosecution.

The federal trial court found nothing in plaintiff’s case that would overcome the presumption of disclosure of his name, and found doing so of particular importance where plaintiff proposed to represent a public class.  Moreover, no protective order tould be entered as the local rules of court require redaction of social security information, home addresses, and financial account information.

Michael v. Charter Commc’ns, Inc. (E.D. Mo., 2017)


Fair Trial Rights and Public Trial Principles Not Always Coextensive, Missouri Court of Appeals Observes

State v. Jones, ED104588 (Mo. App.) June 30, 2017.

Defendant, accused of sodomy of a minor, complained of violation of his Sixth Amendment right to a fair and public trial because the trial court removed onlookers from the courtroom during jury voir dire.

Both the Sixth and First Amendments are protective of public trials. Violations of public trial rights are structural, requiring no showing of prejudice.  However, the Supreme Court has held that not every violation of a public trial right renders a trial fundamentally unfair.  Weaver v. Massachusetts, 2017 WL 2674153 (June 22, 2017).

The factors to be considered in constraining public access to trials, over objection, are:  the likelihood that there would be prejudice to a public interest; the conformity of any closure to the interest to be protected; the alternatives to closure; and the findings articulated to support closure.  State v. Salazar, 414 S.W.3d 606 (Mo. App. 2013).

Where no objection to closure was raised at he time of the court’s extemporaneous closure of the courtroom, which was effectuated to protect rather than impair defendant’s fair trial rights, plain error cannot be found.

State v. Jones (Mo. App., 2017)


Inmate May Proceed with Claim that Corrections Officials Violated His First Amendment Rights in Opening Mail from Civil Rights Organization

Turner v. California Department of Corrections, No. 16-6764-PA (JPR), (C.D. Cal) June 30, 2017.

General claims that corrections officials violated inmate’s First Amendment rights by opening his mail may be dismissed, but Truner may proceed against one official individually who is alleged to have opened his mail from the American Civil Liberties Union (ACLU).

Turner v. Cal. Dep’t of Corrs. & Rehab. (C.D. Cal., 2017)

Texas Supreme Court Holds Corporate Campaign Contribution Ban Unconstitutional Political Speech Regulation

Texas law prohibiting corporate campaign contributions violates the First Amendment. King Street Patriots, et al., v. Texas Democratic Party, et al., No. 15-0320 (Tex. 2017).

Texas’ outright ban on corporate campaign contributions violates the First Amendment, the Texas Supreme Court has held.  While the state may at times regulate political speech, at this time the only justification for restriction would appear to be quid pro quo corruption, i.e., political favors in exchange for contributions.  While Texas law requires that Supreme Court precedent be followed until overruled, the case relied upon, Federal Election Commission v. Beaumont, 539 U.S. 146 (2003) cannot be reconciled with the Court’s later decisions in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) and McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014).   As quoted in Texas’ published concurrence, “When individuals with a common goal incorporate under state law, government cannot exact as the price of incorporation those individuals’ First Amendment rights.”  Citizens Unitedsupra, at 351.

St. Patriots v. Tex. Democratic Party (Tex., 2017)

There May Be Some Discomfort: The Open Expression of Ideas Prohibits Suppression of Those Thought Unpleasant, Supreme Court Reiterates

Federal registration of trademarks is not government speech excepted from First Amendment protections and prohibitions.  Lanham Act provision prohibiting registration of “disparaging” marks suppresses speech and is unconstitutional under any standard of review.  Matel v. Tam, No. 15-1293 (S. Ct.) June 19, 2017.

Trademarks are words or symbols — or a combination of the two — that permit identification of particular products or services in the marketplace.  These creations of common law now enjoy federal protections when registered with the United States Patent and Trademark Office (USPTO).  Until last month, the USPTO was permitted to deny registration to trademarks its analysts deemed disparaging to persons, institutions, beliefs or national symbols.  Lanham Act, 15 U.S.C. Section 1052(a) (the “disparagement clause”).  

The Supreme Court has found the law to suppress speech in violation of the Free Speech Clause of the First Amendment.   Registration may not be denied because of a perception that some may take offense.

You Can Get There from Here:  Justices Reach the Same Ends By Differing Means

As is true of much current First Amendment jurisprudence, the justices have taken many routes to the same ends, joining (or not) in separate sections of separate opinions in support of their ultimate, agreed-upon conclusion.  A summary of the justices’ alliances on the case issues is provided at the end of this article.

Having given thorough consideration to the idea that trademarks might be “government speech,” and therefore not subject to First Amendment constraints, and having rejected that notion, Justice Alito and several colleagues concluded that the disparagement clause of the Lanham Act could not survive even the more liberal tests of constitutional acceptability that attach to commercial speech.  Justice Kennedy and several colleagues concluded that the disparagement clause portends potent speech suppression requiring rigorous scrutiny.  Finding it impossible that the clause could stand up to such scrutiny, Justices Kennedy and colleagues opined that no further analyses were needed.

What Went Before

Plaintiff Tam, lead singer of the Asian American rock band “The Slants,” sought but was denied federal registration for the band’s name, which, he asserted, was a wry reappropriation of a racial slur.  The USPTO denied registration pursuant to the statutory provision noted above, which precludes registration of disparaging trademarks.  

The Federal Circuit Court of Appeals found the disparagement clause to be facially unconstitutional as it promotes viewpoint based discrimination.  As the disparagement clause regulates expressive content, it is not commercial speech, cannot satisfy strict scrutiny, and would not survive even the intermediate scrutiny that applies in commercial cases. Moreover, the federal registration process is not a government subsidy nor will registration cause a trademark to become government speech and therefore immune from constitutional protections and constraints.   

Several justices of the Federal Circuit Court of Appeals wrote separately, with one concurrence finding the disparagement clause unconstitutionally vague, and the other concurrence validating the government subsidy argument, but finding the disparagement clause unconstitutional as applied to the non-disparaging “core expression” of “The Slants.”  One dissenting justice found the disparagement clause and its application constitutional while another found trademarks to be commercial speech property subject to and surviving intermediate scrutiny in advancing the government’s interest in the flow of commerce.

Justice Alito Considers the Scope of the Disparagement Clause and the Government Speech Arguments, and Finds Them Lacking

As noted above, the federal Lanham Act confers particular benefits upon registered trademarks but precludes registration when any mark is found to disparage groups or persons living or dead without concern for the good intentions of the party seeking registration.  

Tam did not raise in prior proceedings his argument that the disparagement clause does not apply to racial or ethnic groups.  While ordinarily the court would simply set previously overlooked matters aside, the government’s position that a decision on the scope of the clause would dispose of the case, rendering an interpretation of the constitution unnecessary, a boon from the Supreme Court’s perspective.  Nonetheless, the constitutional avoidance suggested by the government concerning Tam’s argument could not be embraced:  the plain language of the disparagement clause refers to persons, who by definition are the members of racial and ethnic groups, and groups are within the specific terms of the disparagement clause.  

Federal Trademark Provisions as Government Speech Unrestricted by the First Amendment

The Court rejected the government’s argument that no First AMendment protections attach to federal trademarks because they are government speech, are subsidized by the government, or are part of a “government program.”    Such an expansive reading of “government speech”  — which would turn the registration system into a endorsement systems — would mean that the government would also be able to suppress disfavored speech.  To do so would read the Free Speech Clause out of the constitution.  Trademarks and trademark registration are easily distinguishable from the sponsored and controlled speech present in automobile license plate programs, in government advertising programs, and in the use of public property for monuments.

Not only would the speech suppression potential of adopting the trademark registration system as “government speech” portend both sponsorship and censorship, it would decimate copyright protection if each copyright were to be seen as federal speech.

The government subsidy argument is more nuanced but equally unimpressive, the court noted  While the government may not deny a benefit where to do so would imping on protected speech, the government need not fund activities if it does not wish to do so. Tricky as these needles may be to thread, there is no subsidy argument to be made where trademark registration involves no payment to the registrants.  That the government pays the costs of the registration program is of no moment, as the same non-monetary benefit attaches to nearly all government endeavors.

The Court declined the government’s invitation to create a new “government program” exception to the First Amendment, which would expand exponentially constitutional exceptions inherent in the government speech and subsidy cases.  This is particularly true where the government draws its support from cases at a remove from the trademark system involving the collection of union dues.  

The Tam case is more properly analogized to the limited public forum cases.  When the government creates a limited public forum for private speech, some restrictions may be imposed, but the government may not banish speech based on a speaker’s viewpoint.  As the very reason for the disparagement clause’s existence is to preclude expression of disfavored points of view, and as it is fundamental to speech freedoms that the suppression of disfavored or offensive views is constitutionally impermissible, the disparagement clause cannot withstand First Amendment review.

The Proper Focus of Review

Justice Alito concluded that Tam’s arguments concerning expressive speech and the proper standard of review need not be addressed because the disparagement clause could not withstand the more relaxed review attaching to commercial speech, which requires that any commercial speech restriction be narrowly drawn to serve a substantial government interest  Restriction may extend no further than the interest being served.

The “substantial interest” in avoiding demeaning underserved groups or promoting tolerance cannot be seen as other than preventing speech that offends, which “strikes at the heart of the First Amendment.”  While demeaning speech is hateful, free speech principles protect the expression of the thought that is hated.  

If the disparagement clause is said to enhance the orderly flow of commerce — which disparaging speech is believed to impede — the disparagement clause has not been narrowly drawn to support that end, applying as it does to “any” trademark disparaging “any” person, group or institution, sweeping far more widely than necessary.

Concurring (in Part) in the End, But Not Necessarily the Means

Justice Kennedy, with Justices Ginsburg, Sotomayor, and Kagan, concurred in part and in the judgment.  Justice Kennedy observed that the court correctly perceives the viewpoint discrimination inherent in the disparagement clause and likewise correctly perceives that the clause cannot withstand strict scrutiny.  This inability to withstand strict scrutiny is sufficient to address the case and renders further review unnecessary.

It is anathema to the First Amendment for the government to suppress the content of speech and it is particularly odious to single out particular content — viewpoints — for suppression.

It is no answer that the exclusion of “disparagement” applies to any trademark that offends.  Defining suppression first by content and then singling out a particular type of content is viewpoint based suppression.  Suppression of all views enhances rather than diminishes the error.  

A focus on audience impact rather than speaker intention — good or bad — fares no better in salvaging the disparagement clause, for the result remains the same not matter whether speaker or listener are considered.  The government may not inhibit the presentation of ideas for public purview.  Moreover, government hostility to a speaker’s point of view is no less hostile where the lens is focused on the listener rather than the speaker.

Government Suppression of Speech is the Overarching Concern, Not Whether Speech is Commercial

Rather than distinguishing “commercial” speech from other forms of speech and permitting a more relaxed review of the former, the concurring justices opined that heightened scrutiny is not context dependent and must be applied whenever the government intervenes because it disagrees with a message.

A Solitary Voice Urges Judicial Restraint

Justice Thomas, writing separately and singly, has expressed his concern that the court did not need to address questions not raised below.  Justice Thomas emphasized his view that strict scrutiny is required whenever the government seeks to restrict speech in order to suppress ideas, without reference to commercial context.  But because the disparagement clause could not survive even lesser scrutiny, Justice Thomas joined in Justice Alito’s conclusion.

15-1293 Matel v Tam

The Lineup:  How the Justices Were Allied on Case Issues:

lee v tam judicial lineup

Matel v. Tam Opinion: How the Justices Line Up


Part One: General Principles Governing Trademark and Posture of the Case

Justices Alito, Roberts, Kennedy, Ginsburg, Breyer, Thomas, and Kagan

Part Two: Whose Interests are Captured in the Disparagement Clause of the Lanham Act, 15 U.S.C. Section 1052(a)

Justices Alito, Roberts, Kennedy, Ginsburg, Breyer, Kagan and Sotomayor

Part Three A: Trademarks are Not Government Speech Exempt from Constitutional Constraints

Justices Alito, Roberts, Kennedy, Ginsburg, Breyer, Thomas, Kagain and Sotomayor

Part Three B: Trademarks are Not Government Subsidized Speech

Justices Alito, Roberts, Thomas and Breyer

Part Three C: Trademark Registration Does Not Merit Creation of a New Legal Doctrine for Government Programs

Justices Alito, Roberts, Thomas and Breyer

Part IV: The Disparagement Clause Cannot Survive Even More Lenient “Commercial Speech” Review

Justices Alito, Roberts, Thomas and Breyer

The First Concurrence in the Judgment: Strict Scrutiny Applies in All Speech Supression without Reference to Context of Commercial or Non-Commercial Speech

Justices Kennedy, Ginsburg, Sotomayor and Kagan

The Second Concurrence in the Judgment: The Court Ought Not Review Issues Not Before It. Strict Scrutiny Should Apply, But the Outcome Here Is Correct

Justice Thomas