Lawyerly blind spots

In my home state, covenants not to compete can be enforced against physicians by their former employers, but not against lawyers by their former employers. I don’t remember the details of the court’s rationale, but the feeling it left me is that lawyers, unlike doctors, are just too darned important to deny the public in a particular locale the ability to hire a guy who just hung out his shingle as a solo practitioner right next door to the big firm that hired him fresh out of law school, where he worked until last Friday.

Hold that thought.

A Kentucky print shop owner, whose business (Hands on Originals) includes printing T-Shirts, has once again succeeded, this time in the Kentucky Court of Appeals, in defending against a charge that he discriminated based on sexual orientation when he refused to print T-Shirts celebrating gay pride.

The outcome pleases and mildly surprises me. The surprise comes because similar cases have been losing oftener than not.

The courts are making a distinction “between material that is seen as fundamentally expressive, like a message-bearing T-shirt would be, and material not seen as expressive, such as a cake,” said law professor Eugene Volokh, a First Amendment expert at the University of California, Los Angeles.

(Wall Street Journal, emphasis added)

Some such distinction between expressive and non-expressive inevitably must be drawn, lest somebody, some day, discriminate in a routine retail transaction involving fungible goods, and get away with it by claiming the status of, say, Cash Register Artist.

And I’m not going to disagree with Prof. Volokh on what the courts are doing. Hands on Originals was being asked to print the words “Lexington Pride Festival 2012,” as well as graphics, for the event.1 (But I think some calligraphers, called on the inscribe words, are still in legal limbo.)

But I wonder if the courts haven’t been a bit provincial in deciding where to draw the line. Lawyers, sometimes called “mouthpieces,” famously deploy words—sometimes torrents of them—in their advocacy for clients. They don’t hand bouquets or cakes or photo albums to judges to show how wonderful and worthy of legal favor their clients are. They don’t dance, or sing, or engrave calligraphs, either, unless it’s an avocation. Their stock in trade is persuasive words.

As a result, I think lawyers can be pretty dense about nonverbal the ways humans express themselves and their worldviews.

Would we compel a portraitist to render a same-sex couple in oil paint? A musical combo to play the reception? An improv comedy troop to entertain with topical humor? A dancer to do an interpretive dance in the ceremony?

Yet I’ve heard lawyers—including lawyers who by religious conviction ought to be kindly disposed toward the conscience rights of artisans—just mindlessly mouthing the dogma that “if you hang out your shingle, you’ve got to serve everyone,” deaf to the suggestion multiple legal precedents that non-speech expressive activity is protected by the first amendment. And one of the Kentucky judges dissented. Sigh.

That’s a long way of saying that more of the bakers, photographers, florists and calligraphers, who cannot in good conscience promote or celebrate “marriages” that every major liberal politician in the U.S. purported to oppose twenty years ago, should prevail on the basis that they’re immune from being compelled to express, in pixel, petal or pastry, sentiments they don’t believe.

That the sentiments aren’t expressed in words doesn’t mean the activity isn’t expressive. And in contexts other than the latest variants on the sexual revolution, almost nobody has trouble seeing that. I dare say that Polycarp would rightly have refused to burn a pinch of incense to Caesar, even without the declaration “Caesar is Lord,” because the incense itself, in that context, expressed Caesar’s lordship.

But I’ve said this in the past, too:

For a number of craftsmen, though, the first thing that pops out of their mouth (and so, presumably, the first thing that came to mind) when asked to contribute to a same-sex “marriage,” is something like “I can’t do that. It would violate God’s commandments.

I don’t think there’s anything shady about lawyerly recasting of that sentiment as objection to compelled expression. It’s kind of a matter of unpacking what the “it” is that “would violate God’s commandments.”

Better, though, if it were put like this: “I’m going to have to decline this commission. I don’t think I’d be happy with the result if I tried, and I doubt that you would be, either. It’s a worldview barrier.”


1 After I had written and scheduled this for publication, I saw that Professor Volokh had blogged on it and tipped his hand as an Amicus in support of Hands on Originals:

The government may not require Americans to help distribute speech of which they disapprove. The Supreme Court so held in Wooley v. Maynard, 430 U.S. 705 (1977), when it upheld drivers’ First Amendment right not to display on their license plates a message with which they disagree. The logic of Wooley applies equally to printers’ right not to print such messages.

The government’s interest in preventing discrimination cannot justify restricting Hands On Originals’ First Amendment rights. Hands On Originals is not discriminating based on the sexual orientation of any customer. Rather, its owners are choosing which messages they print. In this respect, the owners’ actions are similar to the actions of the parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), who also chose not to spread a particular message through their parade.

In Hurley, the Supreme Court noted that the state, in trying to force the organizers to include a gay pride group in a parade, was applying its antidiscrimination law “in a peculiar way”: to mandate the inclusion of a message, not equal treatment for individuals. And the Court held that this application of antidiscrimination law violated the First Amendment. The Commission’s attempt to apply such law to Hands On Originals’ choice about which materials to print likewise violates the First Amendment.

The Supreme Court has held that large organizations, such as cable operators or universities, might be required to convey messages on behalf of other organizations with which they disagree. But Hands On Originals is a small owner-operated company, in which the owners are necessarily closely connected to the speech that Hands On Originals produces. In this respect, the owners of Hands On Originals are much closer to the Maynards in Wooley v. Maynard, whose “individual freedom of mind,” secured the right not to help distribute speech of which they disapproved.

(Emphasis added) As many times as I’ve cited Hurley in such contexts as these (a parade is non-verbal expressive activity), I’m embarrassed that it didn’t come to mind spontaneously.

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Men are men before they are lawyers or physicians or manufacturers; and if you make them capable and sensible men they will make themselves capable and sensible lawyers and physicians. (John Stuart Mill, Inaugural Address at St. Andrew’s, 1867)

“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)

Some succinct standing advice on recurring themes.