An African-American marketer should not be forced to create an advertising campaign for a white supremacist group. Nor should a Muslim graphic designer be required to develop a webpage promoting Jewish teachings, or a Democrat freelance writer be ordered to draft political speeches for Republicans.
Most agree with this, but Washington state Attorney General Bob Ferguson apparently does not.
Through his advocacy, he is trying to construct a real-life dystopia in which these and similar professionals will be forced to create expressive materials—like advertising campaigns and webpages—to promote, and even celebrate, ideas that violate their convictions.
The most recent evidence of this came when the Washington Supreme Court heard arguments in Ferguson’s case against Barronelle Stutzman.
Stutzman is a 72-year-old floral artist who serves everyone in her community, regardless of their race, sex, religion, or sexual orientation. But because of her deeply held religious beliefs about marriage, she cannot custom design floral arrangements to celebrate a same-sex wedding.
So while she has been glad to serve Rob Ingersoll—a gay man—for nearly a decade, she could not use her artistic expression to celebrate his nuptials.
To Ferguson, this sort of conscientious objection is, well, legally objectionable.
Some who oppose Stutzman’s desire to peacefully live out her convictions argue that designing floral arrangements is not art or constitutionally protected expression.
That argument—which ignores the many U.S. Supreme Court cases that so broadly define expression that even nude dancing is considered constitutionally protected—is not Ferguson’s. He admitted that Stutzman’s floral design work is “a form of expression,” and that “arranging these flowers is no less speech than writing a poem celebrating a particular message.”
So Ferguson’s position is that if an artist makes a living through her expression, she must accept all requests to create expression, regardless of whether she considers some messages deeply offensive. Or she must be punished.
We know this because one of the justices asked Ferguson whether constitutional principles of free expression ever protect a business owner who is accused of violating a so-called nondiscrimination law. And he said that they would not.
Further highlighting his extreme views, Ferguson went so far as to say that Stutzman could not “do the wedding flowers for heterosexual couples and have another employee handle it for same-sex folks.”
So it’s not enough for, say, an LGBT business owner who designs shirts for a gay pride festival to have her employee design shirts for the group protesting the festival. She must actually do it herself. Are we really to believe that American law, rightly understood, is such a conscience-crushing steamroller?
We’re not talking about business owners refusing to provide someone a mundane, unexpressive product—like a meal or a box of laundry detergent—because they dislike that person’s race, religious, or sexual orientation. We’re talking about compelling people to use their artistic talents to create messages or actively participate in expressive events that they cannot in good conscience support.
Imagine that you’re a black citizen living in America, that you worked hard to build a profitable marketing company, and that you’ve developed successful advertising campaigns for various black community groups. Now suppose that a white supremacist organization asks you to develop a similar campaign for their local chapter.
You, of course, are happy to do work for white customers, but understandably will not create advertisements that promote a group whose goals conflict with your identity as a black man or woman. You are obviously not rejecting a customer based on race. You are opting not to promote an idea you reject.
Yet Ferguson, it seems, would have you create that speech, your conscience be damned. You “voluntarily” entered into business, he would say; now you must accept the “consequences” of the law as he sees it.
Capitulate or close your business. Never mind that your family would lose its only means of financial support. You should’ve thought of that, so his argument goes, before pursuing your career aspirations.
Or put yourself in the shoes of a Muslim who immigrated to the United States to avoid religious persecution and who later earned a degree in graphic design and started a small business.
After seeing your best work online, a Jewish group asks you to create its website, which will include a page explaining why Jewish Old Testament teachings are correct and Islamic teachings are wrong. Unable to broadcast messages that conflict with the heart of what you believe, you refer the organization to another company.
If you do business in Washington, you better keep an eye on your mailbox because, assuming that we can take Ferguson at his word, you’ll be hearing from him soon.
It doesn’t matter how much you’ve overcome to get to where you are or how much this lawsuit will devastate your new business. Accommodation for your conscience has no place in Ferguson’s world.
But Ferguson is simply mistaken about the law. The U.S. Supreme Court has long recognized that the First Amendment prohibits the government from forcing citizens to express (or help communicate) messages that they find objectionable.
The government cannot force an individual to be an “instrument for fostering public adherence to an ideological point of view he finds unacceptable.”
Our nation’s highest court clearly affirmed that principle when it unanimously found that the state of Massachusetts could not force an organization to include the message of an advocacy group in its parade. Neither, then, can the state of Washington compel expressive professionals to create speeches that they don’t want to support.
But unless the Washington Supreme Court sets Ferguson straight, all who create expression in the marketplace have ample cause for concern, whether you’re a floral artist with conservative Christian views about marriage or an LGBT promotional printer who doesn’t want to create materials that criticize same-sex marriage.
That’s why this issue—freedom for expressive professionals—should cross partisan and ideological lines. No one—Republican, Democrat, conservative, or liberal—should want to live in the world that Ferguson is trying to create.
