It is hard to imagine a more fitting representation of the right to freedom of speech than a printer. So it's fitting that a recent Kentucky case deals with the right of a printer to decline to print something he disagrees with.
The case involved a small-business owner who was asked to print t-shirts for a gay pride parade. The printer had previously declined orders for material he felt conflicted with his religious beliefs, "such as adult entertainment products" and sacrilegious content. This time, though, he was taken to court – by the Gay and Lesbian Services Organization, which had sought the shirts, and by the Lexington-Fayette Urban County Human Rights Commission.
The commission determined the business, Hands On Originals, was a "place of public accommodation," had discriminated on the basis of sexual orientation, and should pay unspecified damages.
When the commission's findings were reviewed in court, the trial judge correctly determined that any attempt to force the printer to create t-shirts carrying messages with which he was in disagreement would violate the First Amendment.
Specifically, the court followed a line of U.S. Supreme Court cases protecting citizens from "compelled speech"— a government requiring a citizen to endorse a message with which he or she disagrees. The Supreme Court, for instance, has held that a parade need not include participants with a message contrary to the parade organizers' intent. In another case, the court said New Hampshire could not force a person to display a message on their license plate that they found objectionable.
Last week the Kentucky Court of Appeals also ruled in favor of the printer. The decision, though, was more disjointed.
One of the judges determined that the county's discrimination law could not have been meant to tell a person to engage in any kind of speech. This judge believed a "shopkeeper's refusal to serve a homosexual, not because the person is homosexual, but because the shopkeeper disapproves of homosexual intercourse or same-sex marriage, would be the legal equivalent of sexual orientation discrimination."
He said, however, that in this instance, the printer had not acted because of the sexual orientation of anyone since he did not inquire of the organization's representatives anything about his attractions and the organization "itself also has no sexual orientation or gender identity." The printer, then, was free to choose the messages he conveyed in his work.
The next judge ruled that the attempt to force the printer to print the t-shirts contrary to his religious beliefs ran afoul of the state's Religious Freedom Restoration Act. This judge believed the printer should have been given some kind of alternative to printing the message with which he disagreed.
The third judge on the panel dissented. For that judge, it was important that "gay marriage and same sex relationships are now recognized under the United States Constitution as a fundamental right." He would read the ordinance to prohibit "discriminatory conduct that is inextricably tied to sexual orientation or gender identity," – here, refusing to print t-shirts "based upon gays and lesbians promoting a gay pride festival in Lexington."
The appeals court decision is likely to be appealed to the Kentucky Supreme Court. There, the court has plenty of reasons to find in favor of the printer: the meaning of the ordinance, the compelled speech principle, and the religious freedom rationale.
The bottom line is that this case should not be all that difficult. It is troubling that for some people it is. The best result would be for the state high court to vindicate the right of speech and set a precedent for similar challenges in other states.
William C. Duncan is a senior fellow at Sutherland Institute. The Institute filed an amicus curiae brief with the Kentucky court of appeals in this case.
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