David Cole, the national legal director for the ACLU, has an op-ed out Monday that reads, “The ACLU has been this nation’s leading defender of free speech for more than a century. We firmly believe that states cannot compel artists or anyone else to express messages with which they disagree. But…”
Cole’s first two sentences are fine. But that “but” after saying governments shouldn’t be able to compel speech shows that no matter how storied the ACLU’s track record of protecting civil liberties may be, the current version of the organization has been completely overtaken by the authoritarian woke Left.
The legal error Cole makes can first be seen in the op-ed’s second paragraph. “The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is ‘expressive’ or ‘artistic.’”
Cole repeats the error in the eighth paragraph. “If Ms. Leibovitz were to open a portrait photography business that offered to take portraits on a first-come, first-served basis to the public at large, as many corporate photography studios do, she could not turn away subjects just because they were Black or Christian.”
And again in the 12th paragraph. “Colorado’s law doesn’t dictate the content of what a business sells. 303 Creative is free to post on all the websites it designs, ‘The Bible condemns gay marriage.’ And by the same token, it could refuse to design a site that says, ‘The Bible blesses gay marriage,’” if it would not design that website for anyone. In that case, the decision would not be discrimination based on the customer’s identity, but a permissible decision to define the product it sells.”
Cole’s mistake in all three paragraphs is the same mistake Justice Sonia Sotomayor made in the Masterpiece Cakeshop case. Cole and Sotomayor are falsely claiming in both cases that the artists being forced to speak are refusing to speak because of the identity of their customers. But that is just false. The customer’s identity has nothing to do with the content of the compelled speech.
Both 303 Creative and Masterpiece Cakeshop are happy to serve gay people. If a gay person wants a Masterpiece cake and a 303 website to celebrate their birthday, both businesses will happily comply.
Similarly, if a wedding planner who happened to be gay were planning a straight wedding and asked 303 Creative and Masterpiece Cakeshop to design websites and bake cakes for a straight wedding, again, both businesses would happily comply.
The identity of the customer is irrelevant to the decision of both businesses. What is relevant is the specific event they are being forced to support.
So imagine an agnostic florist who happily serves Jewish weddings and bar mitzvahs but has a moral objection to circumcision and refuses to provide flowers for a bris. Is this florist an antisemite? No. She’s just against circumcision, and the state of Colorado should not force her to help celebrate one.
That the ACLU can’t recognize this very clear legal distinction — or more likely, that it feels a need to feign ignorance about understanding it — shows just how far the organization has fallen.