Google memos and pro-Trump cakes: When free speech values collide

From work memorandums to wedding cakes, our values and consistency are tested in some strange places.

Not too long ago, most people agreed on certain values when it came to free speech: “I disagree with your message but tolerate your right to say it.” To be sure, that value created costs, but it seemed worthwhile to most. That consensus is now gone, at least in the corporate context. How this change affects culture more generally remains to be seen, but we may get an answer sooner than many expect.

{mosads}As for the state of corporate culture, the recent Google situation shows that companies care a lot about promoting particular values. No matter what you think about the recent Google employee’s memo on gender differences or about Google’s decision to fire him, this is not a First Amendment issue. The First Amendment only restricts the government, not private parties.

So in terms of the First Amendment, Google can set and promote whatever values it wants. It can criticize “harmful gender stereotypes” or wax eloquent about affirming the “right of Googlers to express themselves” or boldly proclaim that “free society depends on free expression.” Whether this is consistent, correct, coherent, or commendable doesn’t matter as a purely legal matter. No one can force Google to change its mind or its message. As Apple’s CEO Tim Cook noted, “a company is not some faceless, shapeless thing that exists apart from society. … A company like ours has a culture, it has values, and it has a voice.” The First Amendment agrees.

The same holds for artistic businesses. Among those, there is a strong push for businesses to promote certain values and to avoid certain values.

For example, everyone seems fine with cake designers not being compelled to design pro-Trump cakes. Indeed, the mom of a 9-year-old Trump supporter could not find a single cake designer to create a “Donald Trump” cake, and no one cried foul. Or consider Sophie Theallet’s “independent fashion brand” that refused to create dresses for Melania Trump. That seemed fine, too. After all, as Theallet noted, we “value our artistic freedom” and shouldn’t have to “participate in dressing or associating in any way” with projects we don’t want to support.

But when a Colorado cake designer named Jack Phillips decided that he and his cake shop could not create a cake celebrating a same-sex marriage in 2012, the hammer came down hard culturally and legally. The state sued him for violating its anti-discrimination law and wants to compel him to design that cake.

#BREAKING: Supreme Court agrees to hear same-sex wedding cake case https://t.co/YTQgtn6ci4 pic.twitter.com/KxsaRznV1V

— The Hill (@thehill) June 26, 2017

For Phillips, the issue is one of corporate values and culture. While Phillips is happy to serve and does serve people of all sexual orientations, he cannot promote messages and values with which he disagrees, just like those other designers and businesses insist they can’t do. In other words, Phillips doesn’t discriminate based on status; he makes distinctions based on content. He sells brownies to all. He just doesn’t celebrate every message requested of him, no matter who requests it.

That principle has now led Phillips to the U.S. Supreme Court, which will hear his case this upcoming term. And this moment will offer great insight into the current state of our free speech culture, both corporately and generally. Businesses and elite institutions often file briefs supporting one side or the other at the Supreme Court. Which side will these corporations support in Phillips’ case?

One would think, based on their free speech rhetoric and prior positions, that companies like Google would support Phillips. After all, in 2007, Google and Microsoft defended their First Amendment right to not show paid advertisements for websites criticizing North Carolina politician Roy Cooper in their search results. And in 2016, Apple defended its First Amendment right to not create computer code helping the federal government unlock a criminal’s iPhone. Businesses should stay true to their core values, or at least that’s what we would assume. And the government surely should not compel these businesses to betray those values.

“The Google diversity memo should start the conversation — not end it” https://t.co/fZokKygXhG pic.twitter.com/xgLlCDIDsI

— The Hill (@thehill) August 8, 2017

Companies have even gone so far as to argue that their First Amendment rights trump anti-discrimination laws. Right now, Comcast is defending against an anti-discrimination lawsuit by asserting its First Amendment right to reject programs that African American–owned media companies created. And in 2012, ABC defended its First Amendment right to exclude African Americans from “The Bachelorette” when it was sued for violating an anti-discrimination law. As ABC argued in that suit, “Even laws which advance important and worthwhile social policy objectives, like anti-discrimination laws, may not, consistent with the First Amendment, be used to regulate the content of protected speech.”

Since these companies so staunchly defend their own right to promote values of their choosing and have taken more extreme positions than Phillips, supporting this cake designer in his First Amendment quest should be easy. “I disagree with your message but tolerate your right to say it,” right?

In this respect, that anti-Trump fashion designer provided the best reason for businesses to support their own expressive freedom and for them to support Phillips, too: “Integrity is our only true currency.” Let’s just see if she, Google, other corporations get the memo.

Jonathan Scruggs is senior counsel and director of the Center for Conscience Initiatives at Alliance Defending Freedom, which represents Jack Phillips.

The views expressed by contributors are their own and not the views of The Hill.