The Romantic Author as Compelled Speaker

Abstract

The romantic author trope has been extensively criticized in the copyright context, yet it threatens to emerge as a new pillar of First Amendment compelled speech jurisprudence. Justice Thomas’s concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission exemplifies the trope’s rhetorical power, and the costs of that approach. Casting the baker as an artist, Justice Thomas finds that creating custom wedding cakes was speech, and that applying a public accommodations law to require service to a same-sex couple triggered strict scrutiny review. This is an extraordinary result. Although the Court never adjudicated the compelled speech claim, it will take up the issue in 303 Creative LLC v. Elenis, where the artist owns a website design business.

This Article historically contextualizes the romantic author construct, charts its emergence in First Amendment law, and deconstructs the over-heightened autonomy interest it imports into Justice Thomas’s concurring opinion in Masterpiece. This idealized speaker lens does substantial work in suggesting a presumptive constitutional violation arising from a law prohibiting discrimination in public facing businesses. The trope privileges speaker autonomy and subjectivity to a degree that legitimizes the erasure of customers—and disavows the state’s authority in assuring equal access to goods and services. The high stakes conflict of rights in Masterpiece and similar wedding vendor cases demand context-sensitive analysis, which the transcendent, self-regarding lens of authorship obscures. The central claim of this Article is that the romantic ideal is misapplied in wedding vendor cases, exalting subjectivity and expressive autonomy while swallowing the conflicting rights animated by customer interactions.

Keywords: Masterpiece Cakeshop, First Amendment, compelled speech, trope, metaphor, rhetoric, romantic author, constitutional interpretation, public accommodations laws

JEL Classification: K