Bonus Episode: Is Cake “Art” and Entitled to First Amendment Free Speech Protections?

On this bonus episode, Katie and Steve discuss the recent SCOTUS case Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018). In this case, a baker claimed his First Amendment free exercise and free speech rights were violated when he was found in violation of a Colorado statute prohibiting disparate treatment based on sexual orientation in public accommodations for refusing to make and sell a wedding cake to a gay couple. The baker refused to make the wedding cake because of his religious objections to gay marriage. Although the controlling decision of the Supreme Court only dealt narrowly with the baker’s free exercise, religious discrimination claim, free expression issues lurked in the background and were taken up directly and forcefully in Justice Thomas’ partial concurrence. Katie and Steve discuss the free expression part of the case and its real or imagined relationship to artist’s rights and government censorship of art.

The Art Law Podcast is excited to showcase new musical compositions by Chris Thompson.   Chris is a New York City-based music producer, arranger, and percussionist, who has been a longstanding member of the renowned contemporary music ensemble,  Alarm Will Sound.  Chris has also performed, recorded, or arranged for a long list of internationally recognized artists and ensembles.  You can learn more about Chris and his music on his website,, where you can also listen to and purchase his most recent album, Lot Hero.


Bonus Episode Transcription

Steve Schindler:  Hi I’m Steve Schindler.

Katie Wilson-Milne:  I’m Katie Wilson-Milne.

Steve Schindler:  Welcome to the Art Law Podcast.  A monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  And vice versa.  The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premiere litigation and art law boutique in New York City.  Hi, Steve.

Steve Schindler:  Hi, Katie.  So, what’s that music I heard?

Katie Wilson-Milne:  So, we have some new music on the podcast.

Steve Schindler:  It’s very exciting.  We thought it would be a great idea to work with a contemporary musician and we are featuring the music on the podcast of Chris Thompson.  Chris is a New York based music producer, arranger, and percussionist.  He has been a member of a group called Alarm Will Sound and the American Contemporary Music Ensemble for over a decade and he’s recently released an album called Lot Hero and he has an album coming out in the fall of 2018.  And Chris has composed the new music for our podcast.

Katie Wilson-Milne:  Yeah so check it out and check out his album if you like it.  Okay, so today, Steve, we decided we were going to talk about one of the many blockbuster cases in this Supreme Court term.  None of them had to do with art.  We should just tell everyone that right away.  But we’re going to strain to find a part of one of the cases that we think has implications for the first amendment and censorship as it intersects with art.

Steve Schindler:  And what is that case going to be?

Katie Wilson-Milne:  So that case is Masterpiece Cakeshop v. the Colorado Civil Rights Commission.  And while the controlling opinion in this case did not treat or analyze the free speech claims that had been part of the prior litigation there were interesting questions around artistic expression and the first amendment came up throughout the litigation.  They just were not ultimately decided by the court and they were treated in one of the concurring nonbinding opinions.  So that’s what we’ll talk about.

Steve Schindler:  In our last podcast, we discussed with Professor Amy Adler the history of censorship and particularly the government’s ability to prohibit or to compel artists to create certain kinds of art.  And what we’re considering today is whether or not a public accommodation law, a law that prohibits discrimination against certain classes of people whether that can be viewed as a form of censorship.  So, what happened in Masterpiece, in 2012 a gay couple walked into the Masterpiece Cake Shop, which is located in the suburb of Denver, and wanted to order a wedding cake.  They sat down with the baker and owner Jack Phillips to talk about the cake for their wedding and when he realized that they were a gay couple, he told them that he would not make a wedding cake for them.  He told him that he would make them any other kind of cake that they would like and sell them cupcakes or anything else but because of his strong religious beliefs and his objection to gay marriage he refused to sell them a wedding cake.  Now we should point out that at the time gay marriage was not legal in Colorado but Colorado did have a civil rights law that prohibited discrimination in a place of business open to the public based upon sexual orientation.  So, after they were refused an opportunity to buy a wedding cake, this gay couple filed a complaint against the bakery under the Colorado civil rights law, and their case was heard before the Colorado Civil Rights Commission, who ruled that the bakery had violated the couple’s civil right to be free from discrimination in a public accommodation because of their sexual orientation.  When the baker was before the commission he made two arguments.  The first was really that forcing him to sell a wedding cake to a gay couple was a violation of his free exercise of religion rights under the First Amendment.  Now under the First Amendment there are really two rights that are implicated in this case.  The first is the one I just spoke of, the free exercise of religion, and the second one is the one that we are really going to be most concerned with on this podcast, which is the right of free speech.  And in this particular case the overriding question for us is whether the baking of a cake is a form of artistic expression.  And one of the things we learned when we spoke on the last podcast with Amy Adler is that the government cannot legally censor artistic expression.  And so, in this particular case the baker argued before the Colorado Civil Rights Commission first that forcing him to sell a wedding cake to a gay couple was a violation of his free exercise right under the First Amendment.  And he also argued that it was a violation of his free speech right under the First Amendment by forcing him to express himself in a way that was contrary to his convictions.  So, the case wound its way all the way up through the Colorado state courts.  It was not heard by the Colorado Supreme Court.  And eventually after losing throughout the courts in Colorado, the baker appealed the Supreme Court.  So, Katie what did they decide?

Katie Wilson-Milne:  So, they really didn’t decide much.

Steve Schindler:  Really?

Katie Wilson-Milne:  Yeah.  The court said, led by an opinion by Justice Kennedy, that they were not going to decide whether this Colorado civil rights law interfered with constitutionally protected rights to free expression of free speech or free exercise of religion.  They raised that there were obvious concerns about a law that would compel a baker to make a cake when he didn’t want to based on his religious belief and also concerns about any holding that would permit the owner of a shop open to the public to not serve gay people based on religious or free speech justifications.  But they left how to resolve those tensions to another day.  And what the court ultimately held was that the commission in deciding the claim brought by the gay couple against this speaker behaved in such a biased fashion against the bakers sincerely held religious beliefs that the whole proceedings were tainted by governmental bias against this baker’s religious belief and that violated his constitutional right you know and the government’s obligations to be neutral as to religious belief.  And so, the whole proceeding was problematic from the get go.

Steve Schindler:  So, what I understand then the court decided was that the procedures and the actions taken by the Colorado Civil Rights Commission, those were the things that infringed upon the baker’s free exercise of religion, not the statute or anything else.

Katie Wilson-Milne:  Right.  They didn’t deal with the statute.  They didn’t deal with the free speech claim at all.  And they dealt with the free exercise claim only to the extent that the process in which the law was applied in this particular case was improper because of the religious animus displayed by the commission.

Steve Schindler:  And I think it’s worth taking a step back for a second, because even though the court really didn’t rule on the statute itself, it ruled on the conduct of the commission conducting the hearing, the law has been clear for many years and Supreme Court has so held that you can’t use a religious belief to get around an otherwise neutral public accommodation law.

Katie Wilson-Milne:  Right.  So, the main opinion, authored by Justice Kennedy, refers to the claim indicta this way:  “The free speech aspect of this case is difficult.  For few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.  This is an instructive example however of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.  One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service.  If a baker refused to design a special cake with words or images celebrating the marriage, for example a cake showing words with religious meaning, that might be different from a refusal to sell any cake at all.  In defining whether a baker’s creation can be protected, these details might make a difference.  And then the court goes on to ignore the free speech issue completely and address the bias of the commission under the auspices of the free exercise claim.  So, the court left the free speech inquiry at that and went on to hold only that the baker’s first amendment free exercise rights were violated by the bias of the commission.  They didn’t deal with the free speech claim at all.  But one justice in his partial concurrence, Justice Thomas, the otherwise terse justice on the court wrote a fairly lengthy opinion in which he dealt primarily with the free speech claim.  And one that focuses, or the main focus of his free speech inquiry, was in the nature of the baker’s creation of cakes as creative expression and indeed artistic expression.  And how the baker’s interests as an artist and a creator were limited by the Colorado statute, which was applied to tell him what he could and couldn’t make.

Steve Schindler:  And the crux of his argument is that of course the creation of a wedding cake is a form of expression.  His concurring opinion does a little historical look at wedding cakes and their centrality to weddings going back to Victorian England through the present. Then, of course, what would a wedding be without a wedding cake?  And that it’s a symbol of the union of a couple.  And so therefore by forcing a baker to create such a cake, which is clearly a symbol of marriage, that that baker’s First Amendment right of expression has been violated.

Katie Wilson-Milne:  Yeah, and he goes through the analysis of any free speech claim, which is first to figure out whether the thing that we’re talking about is speech at all.  And you know in that first step of the analysis he says, look courts distinguish between regulations of speech and regulations of conduct.  And that’s what the court’s doing here.  That’s what public accommodation law is about.  It’s about conduct.  But that distinction for Thomas collapses pretty easily.  And he says we’ve recognized before that particular applications of public accommodations laws can burden protected speech.  You know the line between conduct and speech is not that clear.  For example, like burning a flag or nude dancing or, you know, protesting.  He said all these things we’ve held are protected speech but they’re really conduct.  Bodies are moving.  It’s how we’re behaving, so the line is not that clear.  So, let’s look at the cake through that lens.  And he says, which is relevant for our podcast, we promised listeners we’ll bring this back around to artistic expression, he says, look fine.  This is a cake shop open to the public.  It’s a public accommodation.  But this baker is an artist.  He refers to himself as an artist.  He, like look at his cakes on the website.  They’re beautiful.  They have artistic expression on them and you know this is clearly a form of expression for him.  He takes great care with it and that means we have another constitutional consideration here that we need to deal with.

Steve Schindler:  Right.  The cake is his canvas, the icing are his paints.

Katie Wilson-Milne:  Right.

Steve Schindler:  And he’s engaged in artistic endeavor, at least according to his own website.

Katie Wilson-Milne:  Interesting that Justice Thomas – I’d like to know if he ever came to the defense of an artist before in one of his decisions but it’s interesting that…

Steve Schindler:  We should look at that.  Yeah, we can have our research staff take a look at that.

Katie Wilson-Milne:  Yes, right.  He holds, “Philip’s creation of custom wedding cakes is expressive.  The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message certainly more so than nude dancing or flying a plane, red flag.”  So that’s his holding on whether it’s expressive.  But that’s not the end of the inquiry, right?  So just because it’s expressive doesn’t mean the government can’t regulate it.  It just means that the government is very restricted in how it can be regulated.  So, we know that there can be time, place, and manner restrictions on speech, that speech can be regulated under certain circumstances, which we discussed in our last podcast.  But it’s subject to strict scrutiny which is the highest of tests for what the government can do.  And Thomas then pivots and he says this doesn’t need strict scrutiny, like this is expressive conduct.  The government’s justification for these laws, these antidiscrimination laws, and for telling this particular baker that he has to make this cake for this gay couple is because it’s offensive to discriminate against gay people.  And he says offence is just not a reason that we limit the First Amendment.  And that’s pretty much it.  That’s his holding.  So the case, you know, when we talk about the facts and how it could have been decided really raises the question of how do we read the First Amendment protections to free speech, free exercise, freedom of expression against constitutional protections of equal protection under the law.  And also, the right of states to pass antidiscrimination statutes.  Are these inherently in conflict or can they be read together to make sense? Steve, I don’t know what you think about this, but it strikes me that there are two real concerns.  One is the concern of freedom of expression and the other is the really, real moral and frankly completely practical concern that we can’t have shop owners not serving people because of their race or their sexual orientation or really any other aspect of their identity just because they personally decide that there’s something about that person that’s offensive to them.  That that’s just not workable in our society in my view.  But I’m not sure that these things have to be in utter conflict to resolve the balance of these values.

Steve Schindler:  And that, I think is, as you referred to before the basis in some ways of the dissent written by Justice Ginsburg and joined by Justice Sotomayor, which is that in effect the claim that this cake was a form of expression of speech is somewhat misguided.  That, in fact, what was going on here was that he was a baker who was making wedding cakes and he made wedding cakes to sell to heterosexual couples.  And the only thing that was going on here was his decision not to sell the cakes that he made to a gay couple.

Katie Wilson-Milne:  Right.  I’m not even sure that we have to decide whether it’s expressive or not.  I mean it strikes me that the difference between all the examples that Justice Thomas gives about protesting and flag burning and nude dancing.  Those are not public accommodation situations.  That’s an individual choice to express their opinion and the government’s decision about whether to crack down on it or limit it or not.  In a public accommodation context, the question is, if you decide to open a store or provide a service that is generally open to the public and otherwise unlimited, you cannot pick and choose who you provide your services to or you sell to on the basis of a protected identity like race or, in this case because of the statute, sexual orientation.  And it has been held that those laws under the constitution are permissible even though they absolutely do limit the conduct and in some cases the expression of the shop owner.  But we just have decided as a country in order to balance these constitutional protections that if these laws are neutrally applied, yes, some individual decision making will have to be altered.  But that’s how we balance these constitutional rights.

Steve Schindler:  So, one question that this case raises is, does it matter that the cake is a generic cake available to anyone who comes into the shop or whether the government is in fact forcing the baker to create a cake, to engage in artistic expression against his will?

Katie Wilson-Milne:  I think for me it feels more speechy if the cake is really bespoke.  You know, it has a particular stamp on it that’s unique to that cake and to that baker.  But I’m not sure that that distinction should matter in terms of how we decide these cases, because I think it’s really hard for courts to decide what’s artistic and what’s not.  And I’m not particularly pleased with the Supreme Court deciding what is artistic and what’s not and I’m not sure it’s workable.

Steve Schindler:  Certainly not the current one.

Katie Wilson-Milne:  Right.  Yeah or any, but I’m not sure it’s workable to have that be a threshold issue in the question of whether neutral nondiscrimination laws can be upheld.

Steve Schindler:  What about the case of an artistic wedding photographer?  Do you think that photographer could make an argument then that she was engaging in artistic expression and for the government to mandate how she was to perform the services would be a violation of her First Amendment right of free speech?

Katie Wilson-Milne:  Well I think we know how Thomas and Gorsuch would come out on that.  They would say you absolutely can’t be told by the government to create art photography in the context of a gay wedding if it violates your religious beliefs.  I think Ginsburg and Sotomayor would seem to say no if you accept assignments from anyone else that walks into your door and the only reason you’re not accepting an assignment from a gay couple is because they’re gay and there’s no other reason.  You know under a neutral public accommodation law, you can be made to provide that service.

Steve Schindler:  I think that’s right.  And the question is what happens to the balance of the court, particularly with Justice Kennedy having just resigned?

Katie Wilson-Milne:  Yeah and that’s the interesting question because these are not, that’s not an easy issue.  I mean I think people when they think about making an artist create something, it just doesn’t feel right.  I don’t think that sits easily with people, and I think we can say off the bat that there is no circumstance in which the government can make an artist create a work or really prevent an artist from creating an artwork.  But what happens when that principle intersects with public accommodations?  And yeah, we could just go the route of saying well this isn’t really art.  If you’re providing services to the public it’s not art.  But the question about a wedding photographer is, you know a lot of wedding photographers are artists who are working on the side to make money, is a really hard question.  Same with a gallery.  Let’s say an artist owns a shop and sells her own work.  Can she refuse to sell work to someone because that person’s identity is objectionable to her based on her religion? Or can she refuse to sell work on other grounds, because it feels expressive to her to be compelled to sell that work.

Steve Schindler:  Right and I think the other interesting thing about that apart from the sort of public accommodation aspect of it is, an artist having her work associated with certain kinds of people and obviously thinking of maybe people with unpopular political beliefs or even selling a work to someone who identifies as a white supremacist.  That the artist might have legitimate concerns about having her work associated with somebody like that.

Katie Wilson-Milne:  Right.  Well the Colorado civil rights law doesn’t protect white supremacists but if it did that would be a problem.  I mean under the logic of Ginsburg and Sotomayor at least.  If the law protects a certain type of identity, which is statutory law can and it’s neutrally applied, then a shop owner can’t just pick and choose.

Steve Schindler:  Right.  So, I think the one summary or one way to reconcile these competing interests is to say that the government can’t force an artist to create a certain kind of work or to not create a work.

Katie Wilson-Milne:  Or to provide it to the public.

Steve Schindler:  Or to provide it to the public at all.  That’s completely up to the artist.  But once somebody who is engaged in commerce decides to sell certain kinds of things or works, then they can’t simply just decide not to sell those works to people who are protected by anti-discrimination laws.

Katie Wilson-Milne:  Right.  So, even if we give Thomas that the cake is expression and is artistic, which is hotly disputed and we are not saying we agree with.  Even if we give him that under this principle we could still find that, yes, this is a type of expression, but no, once you’ve created it you have to provide it to everyone.  You’re free to not make the cake, but if you’re going to make the cake at all, you’ve got to sell it to everyone.

Steve Schindler:  Right.  You can’t have your cake and eat it too.  And that’s it for today’s podcast.  Please Subscribe to us on iTunes or wherever you get your podcasts and send us feedback at  And if you like what you hear, give us a five star rating.  We’re also featuring the original music of Chris Thompson.  And finally, we want to thank our fabulous producer Jackie Santos for making us sound so good.

Katie Wilson-Milne:  Until next time, I’m Katie Wilson-Milne.

Steve Schindler:  And I’m Steve Schindler bringing you the Art Law podcast.  A podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne:  And vice versa.

Music by Chris Thompson.  Produced by Jackie Santos.