As Justice Thomas explained in his dissent in Masterpiece Cakeshop, the Court distinguishes between “regulations of conduct and regulations of speech.” He then went on to explain that when conduct is speech, such as flag-burning, it enjoys first amendment protection. To determine whether conduct is expressive, the court looks at whether the conduct was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.” Clark. He and Justice Gorsuch especially described why Mr. Phillip’s custom cakes were expressive, i.e. art. The majority did not hold that a custom wedding cake is expressive conduct, ruling on other grounds. Justice Ginsberg explained the second prong of the test was not met in this case and that any communication the cake represented was the couple’s, not the baker’s.
Setting aside the circumstances of this case (refusing to design a wedding cake for a same-sex marriage), discuss the following:
1) In your opinion, can a custom-designed cake, in context, meet the expressive conduct test outlined in Clark and quoted by Justice Thomas above (intended to be communicative + reasonably understood in context to be communicative)?
2) To meet the Clark test, should (any) communication have to be “particularized” (the observer “gets” the intended message) to meet the test?
3) The idea that money is speech, and that corporations are “people,” has been part of our jurisprudence well before the Citizens United decision. Do you agree that money is political speech for First Am. purposes?
4) Make one persuasive or legal argument you could advance to support Frist Am. protections for corporate campaign contributions, and one against.
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