Abstract
Although I generally support the result in 303 Creative, my aim here is neither to fully explain nor to defend the decision. That’s a project for another day. Instead, in this symposium commemorating Professor Volokh’s work, my aim is to outline the legal position he developed, which aligned with and may have influenced the decision. I’ll focus on what I believe are the most important briefs in three key cases: Elane Photography (2013), Masterpiece Cakeshop (2018), and 303 Creative (2023) itself. Collectively, I’ll refer to these as “the Volokh briefs.” While others contributed, Volokh and his First Amendment amicus clinic at UCLA took the laboring oar in conceiving the arguments, drafting the briefs, and providing citation support. Volokh was the principal mastermind and workhorse.
As part of tracing this intellectual journey, I will show how the Volokh briefs evolved and matured over time and how they were distinct from others taking the side of the objecting service providers. Volokh’s view of compelled speech gave breathing room for individuals’ vital speech interests while leaving plenty of space for government to protect people from discrimination based on status in most commercial transactions. Although the Supreme Court stopped short of fully adopting it, the methodology in the Volokh briefs provides a roadmap for drawing and navigating the lines necessary to preserve the core interests on both sides. I’ll pause to consider arguments from critics who responded directly to the briefs.
Volume
39
Issue
2
Page
143
Year
2024
Recommended Citation
Dale Carpenter,
The Volokh Briefs: Drawing the Line Against Compelled Speech in Public Accommodations,
39
Const. Comment.
143
(2024).
Available at:
https://scholarship.law.umn.edu/const-comment/vol39/iss2/1
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