Free Speech and Off-Label Rights

Abstract

When a litigant invokes a constitutional right toprotect interests different from the ones underpinningthe right, he engages in what this Article calls anoff-label rights exercise. The Free Speech Clause hasrecently become an especially prominent, and troubling,site of off-label rights exercises. Two of the mostprominent cases in the Supreme Court’s last terminvolved litigants who invoked their constitutionalrights to free speech to protect interests unrelated tospeech or expression. In Janus v. American Federationof State, County, & Municipal Employees, a stateemployee argued that forcing him to pay for the union’sbargaining activities violated his rights againstcompelled speech. But the union would be speaking forhim—representing him along with all of his fellowemployees in labor negotiations—whether or not he wasmade to pay union dues. His free speech claim was thena smoke screen used to protect a purely pecuniaryinterest—or an off-label rights exercise, and anopportunistic one at that.Second, in Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commission, a baker who opposed same-sexmarriage on religious grounds argued that requiringhim to provide custom wedding cakes to same-sexcouples violated his free speech rights. But, as in Janus, speech was incidental to the baker’s true interest. Hadthe Court granted the baker’s free speech claim—findingthat he could deny a gay couple a wedding cake withunique artistic designs but still requiring him to providean unadorned cake—the baker would likely have beenno better off. For speech or artistry does not implicate awedding vendor in a same-sex marriage any more thana non-expressive contribution does. Here, too, then thefree speech claim was off-label—an effort to leverage thelaw’s greater solicitude for speech relative to religiousfreedom even while the baker does not have theexpressive interests grounding constitutional rights tofree speech.This Article uses cases like the baker’s, which theCourt will almost surely revisit, to advance a theory ofthe proper scope of constitutional rights, distinguishingbetween on- and off-label rights invocations. To that end,the Article’s first aim is to establish that artistic weddingvendors’ invocations of the Free Speech Clause are infact off-label.The Article’s second and larger aim is to critiqueoff-label constitutional rights exercises. This Articleargues that every off-label rights exercise demeans theasserted right and risks creating intolerable inequalityrelative to the person who shares the litigant’s trueinterest but who cannot make her claim fit within thecontours of the misappropriated right. For that reason,the Article concludes that courts have good reason todeny off-label rights claims—especially in cases like thewedding vendor challenges