Jacob Rowbottom: Cakes, Gay Marriage and the Right against Compelled Speech

In the high-profile decision in Lee v Ashers, the Supreme Court had to consider a customer’s rights against discrimination along with the baker’s right to freedom of expression. In its finding for the baker, the Supreme Court took an important step in developing a domestic doctrine against ‘compelled speech’. While the outcome of the case divides opinion, the reasoning of the Court requires further consideration of when a person has a right not express a particular view.

The facts of the case are well known. Mr Lee sought to buy a cake with the message ‘support gay marriage’. The bakers refused to go through with the order on the grounds that it went against their religious beliefs. The customer then complained that the refusal amounted to unlawful discrimination. The Supreme Court found that the refusal did not amount to discrimination on the grounds of sexual orientation, as the bakers objected to the message rather than to the customer making the order. The Court then considered whether the refusal amounted to discrimination on the grounds of political opinion (which is prohibited in Northern Ireland).

Lady Hale found that the refusal of the order was not a clear-cut case of discrimination against a person, as the bakers did not refuse to sell any product to the customer on account of his political opinion. However, she accepted that a close association between the person and the message was arguable. Accordingly, Lady Hale went on to consider whether the anti-discrimination law in Northern Ireland was compatible with freedom of expression. In addressing this question, her reasoning recognised a right against ‘compelled speech’ – that people should not be required to voice views that they do not hold. This led Lady Hale to find for the baker:

‘the bakery was required, on pain of liability in damages, to supply a product which actively promoted the cause, a cause in which many believe, but a cause in which the owners most definitely and sincerely did not.’

As a result, the law of Northern Ireland had to be read and given effect in a way that complies with Articles 9 and 10 of the ECHR.

The language of ‘compelled speech’ is taken from US First Amendment doctrine. To find support in the domestic law Lady Hale drew on Lord Dyson’s statement in RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38:

‘Nobody should be forced to have or express a political opinion in which he does not believe’.

Support for the principle against compelled speech can be found in earlier case law, such as Wheeler v Leicester City Council (1985), where a council’s attempt to force a rugby club to express condemnation of a team’s tour of apartheid-era South Africa was found to be unlawful. Lady Hale also drew on decisions of the European Court of Human Rights, such as Buscarini v San Marino (1999) on the right not to hold religious beliefs.

Recognising a right against compelled expression is an important and welcome development in the domestic law on expression rights (I will resist calling it the ‘icing on the cake’ for free speech). Such a right is an aspect of an individual’s autonomy to choose what to say. However, there are difficult questions about the contours of the right. The facts of cases relied on by Lady Hale in support of the principle are very different from the position of the bakers. The decision in RT concerned an asylum claim by a person facing persecution in Zimbabwe due to a refusal to show support for the regime in that country. The decision of the Strasbourg Court in Buscarini was concerned the oath of allegiance required of members of the legislature. By contrast, in Ashers the free speech issue arose in the context of the commercial provision of goods and services.

As a private business, a baker is normally free to refuse to make a cake with any message and can impose rules on permissible content (such as restricting offensive messages). The issue of compelled speech arises where the law restricts the baker’s (or anyone’s) exercise of that discretion, or where a public authority uses its power to pressure someone to endorse a particular viewpoint. In this case, the law of Northern Ireland prohibited discrimination on the grounds of political opinion.

There are, however, some occasions where it is desirable for a person or company to be legally required to publish certain information. A cigarette company has to display warnings on its packaging. That example seems unobjectionable as it does not require an individual to express a particular political or religious view, and any interference with expression could be justified on public health grounds. In another example, s.12 of the Defamation Act 2013 allows the court to order a defendant in a defamation case to publish a summary of the judgment. Again, that is compelled speech (which goes against the views of the newspaper editor), but it is accepted in so far as it is necessary to remedy the harm of the defamatory statement.

The challenge lies in identifying when a right against compelled expression is engaged and where the doctrine is limited. One possible limiting principle is that the right against compelled speech applies only in relation to certain types of message, in particular where the matter touches on political or religious beliefs. Those cases are most likely to be the sensitive examples that infringe individual autonomy. However, Lady Hale found that the principle is not limited to such categories and stated that the bakers would be entitled to refuse the order ‘whatever the message conveyed by the icing on the cake – support for living in sin, support for a particular political party, support for a particular religious denomination’.

A second possible limiting principle is that the right against compelled speech is strongest when it would run counter to the underlying purpose or goals of the business or entity in question. That raises some difficult questions in terms of identifying the central purposes and goals of the business, but there are some obvious illustrations of the point. For example, a magazine dedicated to environmental protection should not be compelled to publish adverts from companies that are responsible for high levels of pollution. Lady Hale drew on such obvious cases to support her conclusion, describing the position of the bakers as being ‘akin to a Christian printing business being required to print leaflets promoting an atheist message’. The analogy is not convincing. The Christian book publisher exists for a particular expressive purpose, while the baker does not. Being legally required to make a cake with a particular message does not undermine the central purpose of the enterprise. The use of the analogy suggests that the Supreme Court did not accept the purpose or goal of the entity as the main limiting principle.

A third possible limiting principle is that the right against compelled speech is most pressing where the audience would assume the person being compelled holds the view in question. The corollary being that the right is less likely to be engaged where it is clear that the person compelled to publish or speak does not hold the view and is merely complying with a legal requirement. This limiting principle was also was dismissed by Lady Hale, who stated that ‘there is no requirement that the person who is compelled to speak can only complain if he is thought by others to support the message’. Instead, ‘what matters is that by being required to produce the cake they were being required to express a message with which they deeply disagreed’.

The rejection of this argument could have significant consequences. For example, it would strengthen the claim of compelled speech in relation to the warnings on cigarette packets or the publication of defamation rulings. Moreover, the line of reasoning could prevent the development of a right of reply to an attack in the media (even where it is clear that the editor does not hold the view stated). A legal right of access to speak on privately owned land (such as a shopping centre) has been defended against claims of compelled speech in the US on the grounds that the owner would not be taken to endorse the views expressed. To be clear, the ruling in Asher does not itself rule out such measures. The decision does, however, pose a challenge in explaining how such measures do not amount to compelled speech. Maybe such cases can be accommodated where a company (rather an individual) is required to speak or assist the speech of others. Lady Hale leaves this route open, though I am not sure the company/person distinction addresses all of these issues.

The issues become more complicated when looking at speech required in the course of a person’s employment. In many areas of employment, people may find themselves facilitating the dissemination of views that they oppose. A teacher that is sceptical of climate change may still be expected to teach the mainstream science on that subject. A copy-editor or printer may have to work on a book or article that he or she does not support. Issues of an employee’s rights of conscientious objection have arisen in relation to the law on religious discrimination (see Eweida v UK (2013) for example) and could similarly arise in a compelled speech doctrine.

A situation analogous to Ashers could arise where a supermarket employs a specialist cake maker that happens to have certain political beliefs. In such a case, the supermarket might happily accept an order for a cake with a message supporting Scottish independence, but the cake maker may have a personal political objection to such a message. In such a situation, could the employer dismiss the employee for refusing to make the cake? Dismissal for a political opinion is not automatically unfair in the employment law of England and Wales. Lady Hale’s comments, however, lend support to the view that a dismissal for refusing to express a particular view should be unfair (otherwise the right against compelled expression would apply only to self-employed bakers). Accordingly, the state may be under an obligation to prevent compelled expression being imposed by other private actors.

There are also the rights of the employer to consider. In the example above, the owner of the supermarket may wish to promote Scottish independence and fear that a refusal to make such a cake would generate negative publicity. Of course, there may be ways to accommodate the rights of the both employer and employee, but the example shows some of the different issues that need to be balanced. The issue is a familiar one in the context of media law, where the media owner, editor and individual reporter may have conflicting views about an article to be published.

The recognition of a doctrine of compelled speech is a significant development in the law on free speech. Translating the right not to speak from a slogan into a workable doctrine nonetheless poses a number of challenges in deciding when and where such a right applies. In developing the doctrine, it must be remembered that some types of compelled speech may be desirable and can sometimes work as an antidote to private censorship.

Jacob Rowbottom is a Fellow of University College, Oxford and author of Media Law.

(Suggested citation: J. Rowbottom, ‘Cakes, Gay Marriage and the Right against Compelled Speech’, U.K. Const. L. Blog (16th Oct. 2018) (available at https://ukconstitutionallaw.org/))