You Don’t Have To Print That – A First Amendment Victory.

Hands on Originals (HOO) is a t-shirt and clothing outfitting company in Lexington, Kentucky.

Their owner, Blaine Adamson, is a Christian. That works for him because his company does a lot of printing for churches, camps, gatherings, etc.

In 2012, HOO was approached by Lexington’s Gay and Lesbian Services Organization who wanted him to print tee-shirts for a “gay pride” event and parade to be held in June of that year.

Adamson declined to print the shirts, essentially saying he would not be a part of an event that promoted what he felt was a sin.

Of course as there are no other tee-shirt printing shops in the Lexington area (that’s sarcasm,) the LGLSO group filed a complaint with the The Lexington-Fayette Urban County Human Rights Commission saying HOO had discriminated against them on the basis of sexual orientation.

The Human Rights Commission ruled HOO had in fact discriminated on the basis of sexual orientation.

Of interest to us was this statement from the order:

The investigation reveals that Respondent references the fact that they have hired, employed and still currently employ individuals who identify as homosexual. Respondent also references that they have filled orders for customers who have identified as homosexual in the past and state they will continue to do so in the future. The investigation reveals that both of these comments regarding treatment of homosexuals in other situations are irrelevant. The investigation reveals that although Respondent states that they have not denied business to one customer based on their sexual orientation, does not eliminate the fact that they denied GLSO business based on their sexual orientation.

HOO specifically stated that they would not print the tee-shirts based on the message – not who was ordering them. The fact that the shop hasn’t discriminated in the past for hiring or other printing jobs backs up the fact that it was the message on the shirts and not the group ordering them.

Hands On Originals and their counsel, The Alliance Defending Freedom, appealed the Commission’s ruling and this past Friday, the Kentucky Court of Appeals ruled that the company had not discriminated on the basis of sexual orientation but rather chose not to print a message that offended them or was contrary to their beliefs.

However, the Court of Appeals disagreed on Friday, ruling that speech is not necessarily protected under the fairness ordinance.

While the ordinance does protect gays and lesbians from discrimination because of their sexual orientation, what Hands On Originals objected to was spreading the gay rights group’s message, Chief Judge Joy A. Kramer wrote in the majority opinion. That is different than refusing to serve the group because of the sexual behavior of its individual members, she wrote. A Christian who owns a printing company should not be compelled to spread a group’s message if he disagrees with it, Kramer wrote.

“The right of free speech does not guarantee to any person the right to use someone else’s property,” Kramer wrote.

“In other words, the ‘service’ Hands On Originals offers is the promotion of messages,” she wrote. “The ‘conduct’ Hands On Originals chose not to promote was pure speech. There is no contention that Hands On Originals is a public forum in addition to a public accommodation. Nothing in the fairness ordinance prohibits Hands On Originals, a private business, from engaging in viewpoint or message censorship.”

In an interview Friday, Adamson said he would not object to printing shirts for gays or lesbians as long as those shirts did not carry a message promoting homosexuality.

“I don’t leave my faith at the door when I walk into my business,” Adamson said. “In my case, fortunately, the legal system worked.”

In his dissenting opinion, Judge Jeff S. Taylor said refusing service because of personal objection to homosexuality is “deliberate and intentional discriminatory conduct … in violation of the fairness ordinance.” Anti-discrimination laws must protect the free speech of minority groups to be successful, Taylor wrote.

“The majority takes the position that the conduct of Hands On Originals in censoring the publication of the desired speech sought by the Gay and Lesbian Services Organization does not violate the fairness ordinance,” Taylor wrote.

“Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same-gender sexual orientation,” he wrote. “This result would be totally contrary to legislative intent and undermine the legislative policy of the Lexington-Fayette Urban County Government, since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.”

First Amendment attorney Eugene Volokh writes about the decision saying:

Here’s my view, which was expressed in this amicus brief that my student Ashley Phillips and I filed on behalf of the Cato Institute: Whether or not the ordinance bars discrimination against messages supporting pro-gay-rights events, a printer has a First Amendment right to refuse to print messages of which he disapproves. As the amicus brief argued,

The government may not require Americans to help distribute speech of which they disapprove. The Supreme Court so held in Wooley v. Maynard, 430 U.S. 705 (1977), when it upheld drivers’ First Amendment right not to display on their license plates a message with which they disagree. The logic of Wooley applies equally to printers’ right not to print such messages.

The government’s interest in preventing discrimination cannot justify restricting Hands On Originals’ First Amendment rights. Hands On Originals is not discriminating based on the sexual orientation of any customer. Rather, its owners are choosing which messages they print. In this respect, the owners’ actions are similar to the actions of the parade organizers in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), who also chose not to spread a particular message through their parade.

In Hurley, the Supreme Court noted that the state, in trying to force the organizers to include a gay pride group in a parade, was applying its antidiscrimination law “in a peculiar way”: to mandate the inclusion of a message, not equal treatment for individuals. And the Court held that this application of antidiscrimination law violated the First Amendment. The Commission’s attempt to apply such law to Hands On Originals’ choice about which materials to print likewise violates the First Amendment.

The Supreme Court has held that large organizations, such as cable operators or universities, might be required to convey messages on behalf of other organizations with which they disagree. But Hands On Originals is a small owner-operated company, in which the owners are necessarily closely connected to the speech that Hands On Originals produces. In this respect, the owners of Hands On Originals are much closer to the Maynards in Wooley v. Maynard, whose “individual freedom of mind,” secured the right not to help distribute speech of which they disapproved.

Moreover, the dissenting judge’s argument about the free speech protections offered to the Lexington Pride Festival strikes me as entirely beside the point: The T-shirt would certainly have been constitutionally protected against government suppression, just as the motto “Live Free or Die” would be so protected. But people also have a First Amendment right not to display the message (as in Wooley) or to print the message.

Likewise, the dissenting judge’s argument that requiring HOO to print the T-shirt wouldn’t suggest “that HOO … endorses the Festival” is also beside the point. That was precisely the argument the dissenting justices made in Wooley (quoting the New Hampshire Supreme Court): “The defendants’ … [having] to display plates bearing the State motto carries no implication … that they endorse that motto or profess to adopt it as matter of belief.” But the Wooley majority was unswayed by that: The Maynards, the court held, had a First Amendment right to “refuse to foster … an idea they find morally objectionable,” and thus could not be forced to display the motto even in a context where no one would think that they were endorsing the motto. The same is true of people who don’t want to foster an idea by participating in the creation (rather than display) of messages expressing that idea.

There is a huge difference between discriminating against a gay person and not agreeing with the message a gay person wants you to say and promote.

We continue to wonder that if the government cannot force someone to stand and repeat the Pledge of Allegiance or swear to tell the truth in a court of law, how can the government force people to say things with which they disagree?

They can’t. Or rather they shouldn’t, but as the Human Rights Commission demonstrated, the government often does.

As a small post script to this story, you may remember the post we had the other day concerning Professor Gregory Thatcher of Fresno State who destroyed chalk messages written by a pro-life group and also forced his students to do the same thing. The Alliance Defending Freedom is representing the student pro-life group and has filed suit against the professor and the school.

Comments are closed.