Keywords

U.S. Supreme Court, free speech, freedom of speech, freedom of speech-conduct, First Amendment, constitutional law, Masterpiece Cakeshop

Document Type

Law Review Article

Abstract

Part I sets up the fundamental tension between the Supreme Court's celebrated line of decisions recognizing expressive conduct as speech and its reasons for refusing to recognize all forms of communicative behavior as speech, showing that both sets of motivating concerns are valid (even if misunderstood). Part II explores the traditional method of resolving this tension by measuring the expressiveness individual behavior, concluding that none of the various tests and criteria the Court has used can sensibly reconcile the competing concerns of Part I. Parts III, IV, and V propose and develop an alternative state-action-based approach for assigning levels of scrutiny in freedom of speech cases, and shows how this method not only more accurately addresses the problems of Part I, but is fairly consistent with leading case outcomes notwithstanding its revised methodology. Parts VI and VII discuss further implications, challenges, and potential exceptions to this method, and briefly shows how courts could more sensibly have approached the Masterpiece Cakeshop
litigation using this method.

Publisher

J. David Rosenberg College of Law

Publication Title

Kentucky Law Journal

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