Abstract
In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a baker raised a compelled speech claim when his bakery was sanctioned by the Colorado Civil Rights Commission for refusing to make a customized cake for a same-sex wedding. This argument raised a number of difficult questions regarding the existence, attribution, and interpretation of speech that the Supreme Court ultimately left unanswered. Is making a customized cake protected “speech” for First Amendment purposes? When a baker makes a customized cake for a wedding, what exactly does that cake communicate (if anything)? And to whom should any message expressed by the cake be attributed—to the client, to the baker, or to both?
Compelled speech cases like Masterpiece Cakeshop implicate one of the murkiest domains of First Amendment doctrine. First Amendment analyses generally rest on basic questions regarding the existence, attribution, and interpretation of the speech in question—questions that are often undisputed and elided in courts’ analyses. But when these sorts of questions are disputed, they often take on an abstruse, almost metaphysical quality, and current First Amendment doctrine provides little guidance in navigating them.
This Essay analyzes a largely unexplored issue that lies at the heart of these difficult compelled-speech cases: the extent to which courts should credit the speaker’s own subjective perceptions and beliefs in making determinations regarding the existence, attribution, and interpretation of speech. For example, to what extent should the baker’s subjective belief that he is speaking when he makes a customized cake be taken into account in the court’s analysis? Conversely, to what extent should the court evaluate these sorts of questions from the standpoint of an objectively reasonable observer?
I argue that courts should take neither a purely subjective nor a purely objective approach to these questions. Rather, they should adopt a plausibility-based standard—a middle-ground approach that incorporates some solicitude for speakers’ subjective perceptions and beliefs while cabining the scope of that solicitude within objective boundaries. This approach best captures the ideal balance between the heightened speaker autonomy interests inherent to the compelled speech context and the practical need to cabin such interests within manageable bounds to ensure effective governance.
Recommended Citation
David S. Han,
Compelled Speech, Speaker Preception, and Plausibility,
77 Fla. L. Rev.
743
(2025).
Available at: https://scholarship.law.ufl.edu/flr/vol77/iss2/7
