The Supreme Court will be back in session in just under two weeks. The Court already has one big First Amendment case on its docket, and might be adding a few more in the next few weeks.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court will decide whether Colorado’s anti-discrimination law, which requires a cake artist to design custom cakes for same-sex weddings, violates the compelled speech doctrine of the First Amendment. The Cato Institute recently filed a brief in support of the bakery, arguing that “although making cakes may not initially appear to be speech to some, it is a form of artistic expression and therefore constitutionally protected.” Cato’s brief is one of nearly 50 briefs (by my quick count) in support of the bakery. These 50 briefs include one from the United States, which argues that the Colorado Law violates the First Amendment because the law “compels someone to create expression for a particular person or entity and to participate . . . in a ceremony or other expressive event.” Colorado is scheduled to file its brief next month, and we’ll see how many friend-of-the court briefs it gets in its favor. Given the magnitude of this case, I’m guessing there will be many.
There are a few other cases that the Court might take in the next month or so. One of them is my case, and it deals with whether bans on political apparel in polling places violate the First Amendment. In that case, Minnesota interprets “political” to mean shirts with the logo of the Chamber of Commerce, the AFL-CIO, and perhaps even red and blue shirts. You can read more about that in an earlier blog post here.
There’s another noteworthy First Amendment petition scheduled for the long conference on September 25. In Lozman v. City of Riviera Beach, a Florida resident (and Supreme Court winner in a case with the same name) asks the Court to decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim. Under the doctrine of First Amendment retaliation, government agents aren’t supposed to punish you merely for exercising your First Amendment rights. If your state’s financial regulators read about your unfavorable views of the President in a local newspaper, for example, they’re not supposed to retaliate by ordering your employer to scrutinize your financial practices much more carefully. At least that’s how the doctrine’s supposed to work.
In Lozman, the petitioner was arrested after he spoke at a city council meeting. The court of appeals held that even though the arrest might have stemmed from the city council’s desire to retaliate against him for exercising his First Amendment rights, petitioner had to lose because there was probable cause to arrest him for “disturbing a lawful assembly.” But since when does probable cause categorically defeat a First Amendment retaliation claim? As Lozman’s lawyers point out, a protester arrested for jaywalking should still be able to challenge his arrest if he were targeted as a Republican (or a Democrat).
We’ll see what the Court does with both these petitions in the next few weeks.