Floral Free Speech: Liberals in Tennessee are Making the Case for Conservative Justices

Below is my column in The Hill on the recent controversy of a Tennessee Florist shop refusing to serve Republicans and encouraging others to do the same. It is a timing boycott as we await the decision in 303 Creative v. Elenis.

Here is the column:

Alex Vaughan and Quinn Kiesow are florists on a mission. In establishing the FLWR Shop in Belle Meade, Tenn., they announced that they intended to be “the very best flower shop, not just in Nashville, but well, ever!” It appears, however, that that their “passion for unique and elegant flowers” does not extend to Republicans.

The owners are at the center of a national controversy after refusing to provide decorations for a GOP event featuring former President Donald Trump, former Vice President Michael Pence, and other Republicans. They further urged other businesses to deny future services to the Republican Party over gun control.

Some liberals are ecstatic and heaped praise on the shop.

For many, however, this is a rather incongruous arrangement. Many liberal pundits oppose religious businesses like bakeries in refusing to serve same-sex weddings and oppose the Supreme Court’s recognition of free speech rights for businesses generally. Indeed, if liberals now favor such denials of service for political or religious reasons, they are going to love what is coming in a case called 303 Creative v. Elenis.

Vaughan and Kiesow “immediately declined” service for the upcoming Republican National Committee (RNC). While they said that they “respect” the views of their conservative and Republican customers, they insisted that supplying flowers for the GOP event was “beyond our comfort level,” particularly after the recent shooting at the Christian Covenant School.

I entirely support them both — not because I agree with their view of conservatives or Republicans; rather, I have long maintained that there is a free speech right for businesses to decline to create expressive products for some customers based on political or religious objections.

For years, the courts have struggled with this issue with bakers, photographers, and other businesses refusing to create products for same-sex weddings. Five years ago, in the Masterpiece Cakeshop case, a baker was found to be in violation of the Colorado Anti-Discrimination Act for refusing to make a wedding cake for a same-sex couple due to his religious objections.

The court largely punted the case on narrow grounds.

For years, I have argued that these prior cases wrongly sought to resolve the conflict under the religious clause. In my view, these really are free speech cases.

You can call 303 Creative the unfinished Masterpiece: Lori Smith, a graphic artist declined to provide website design services to couples celebrating same-sex marriages on religious grounds. After she lost before Tenth Circuit, she brought a challenge to the Supreme Court under both the religious and free speech clauses. However, the court accepted the case only to argue the free speech grounds — raising the likelihood of a major free speech case in the making.

Businesses can be sanctioned for refusing to sell pre-made or non-expressive products to customers based on their race or status. However, these cases deal with the refusal to create expressive products to support ceremonies or events that violate a person’s religious or political views.

In my view, a Jewish baker should have a right to refuse to make a Mein Kampf cake, and an Black baker should be able to decline a KKK cake. They are all exercising their free speech rights. While they cannot refuse to sell pre-made products, these businesses cannot be compelled to speak in ways that violate their beliefs.

That is why I support this flower shop.

However, the test of free speech principles is their application to those with views that you oppose. That is one test that these supporters appear unwilling to meet. Indeed, many on the left have long denounced the Supreme Court’s decision in Citizens United v. FEC where the Court recognized that businesses have free speech rights to contribute to elections.

Notably, in the appellate court ruling in 303 Creative, the Tenth Circuit adopted a monopoly theory for speech compulsion. The Tenth Circuit faulted Smith for withholding her unique abilities as a type of speech monopolist. Thus, those refusing to speak in violation of their values were treated bizarrely like little Andrew Carnegies limiting speech by not speaking.

As for her own views, the Tenth Circuit effectively shrugged and held that “[e]liminating … ideas is [the law’s] very purpose.” The court held that it was constitutional to “eliminate” Smith’s religious views against same sex marriage in her own business.

Of course, the GOP could insist that Vaughan and Kiesow are acting as monopolists in withholding the skills of “the very best flower shop, not just in Nashville, but well, ever!”

The alternative is to leave such matters to the market. It is doubtful that many conservatives or Republicans will relish buying flowers from the FLWR Shop. In the same way, many will not likely seek websites from Smith due to her religious beliefs. Both businesses will have to pay the price for their respective views.

Rank and file liberal responses for the FLWR Shop have been a steady stream of “bravo” and “brilliant” accolades. With an opinion expected in a matter of weeks in 303 Creative, we will see if the same accolades are forthcoming if the court (as some of us hope) reaffirms the free speech rights of florists, bakers, photographers, web designers and others.

In the end, the GOP can probably do without the displays from “the best flower shop” more easily than the flower shop can do without free speech. The question is whether recognizing the free speech rights of Christian businesses will prove “outside the comfort zone” for those currently cheering the FLWR Shop.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.


90 thoughts on “Floral Free Speech: Liberals in Tennessee are Making the Case for Conservative Justices”

  1. If I remember correctly, the 303 Creative case revolved around the web designer wanting to post a disclaimer in their ads about not creating web sites promoting same-sex weddings. In the FLWR Shop situation referenced in Turley’s article there is no mention made of anything specific about the order for flowers for the GOP gathering, it is an objection to a particular customer.

    If there is no message requested in the flower arrangements then merely providing any custom item to anyone could be a free speech issue according to Turley’s reasoning in support for their right to refuse. Wouldn’t this then allow anyone a right to refuse to provide a custom item to anyone they choose purely based on a free speech claim. Seems like this would allow all custom-made businesses to discriminate against anyone they want with a built-in defense against any and all discrimination claims.

    Eventually couldn’t this lead to more businesses being creative in their product ads (personal modifications allowed on approval, etc.) so we end up with de facto discrimination because of a minor customization which would be an excuse for free expression exclusions of certain customers who are undesirable to that particular shop owner.

    Maybe the old time refusal to serve will end up becoming the new standard. The more things change…

    Overall the whole brouhaha leads me to the conclusion that maybe the unrestricted free market is the best arbiter of these problems, not legislation or the courts.

  2. This is just another case of judges who care nothing for the law, they are often brats simply doing ballets of pretzel logic to “get their way”. The mythology of “legal reasoning” is laughable, the way they do it is to BEGIN with the way they want the case to turn out and then backfit their rationale. Thus, a boy gets to go into the girl’s shower room (these are minor children) because the Obamite hysterics at the Department of Education obsessed over such things. Too bad about the pervasive environment of gang intimidation that defeats education in most the Democrat-run cities. The DOE has never investigated this much less brought any cases.

  3. As I understand it, political beliefs are not protected against discrimination by law. You cannot discriminate against somebody because of their race or religion (or, I think, their sex), but I am unaware of laws protecting people for their openly-proclaimed political views or affiliations. For example, some people may remember when it was commonplace on job applications to ask whether the applicant was or ever had been a member of the Communist Party. I actually would not want discrimination on political grounds to be illegal, because I like to have at least the possibility of saying no to some people for political reasons, even though I would never announce that politics were a factor.

  4. This is more about SLAVERY, as far as I’m concerned. If these people are forced to bake cakes, create websites, or provide any other labor against their will, they are nothing more than slaves.

  5. So the florist feel they can not deal with republicans because of their view on gun control . The second amendment is part of our constitution and like you just don’t stop that amemdment because you don’t like it . Do people understand to get rid of the second amendment you need a constitutional amendment requiring two thirds of the states to agree to do away with that amendment . trashing the second amendment is only first then the first and fourth and which ever people don’t like or interfers with their views

    1. Or an Article V Constitutional Convention called for by 34 states. 19 of which have already approved. They’re more than halfway there.

  6. I like how they are saying they are discriminating against conservatives because of the violent actions of a democrat homosexual who cold bloodily murdered three small children, and some adults. They have no credibility, and will you folks please stop giving these arrangement groomers any more free press.

  7. “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” George Washington

  8. I believe in their right to refuse service to anyone, at any time. Private property should give them that right. Anyone should be free to do business with whomever they choose, and nobody else.

  9. OK, what the REAL bottom line here in all of this noise is, is that the USSC/SCOTUS is incompetent, irrelevant and immaterial when it comes to the subject of dispensing real justice, and so is the rest of the 100% corrupted legal system too! In case anybody happened to miss it, last year, when they reversed Roe v. Wade, after letting it stand for 49 years, they openly admitted that they cannot and must not be trusted to get ANY decisions right!! If the USSC/SCOTUS is capable of making egregious mistakes, especially in the matter of the life or death of unborn babies, then why would anybody look to them to properly adjudicate even in the matter of a parking ticket???
    Those men and women of the USSC/SCOTUS are not gods of any kind, they are no different than you or I, they are all prone to making mistakes too, so why should we listen to anyone just because they are a member of the legal system? Is there some special status that is allocated to a certain kind or class of other criminals?? The legal system commits various kinds of crimes against us, including fraud, on a daily basis. If I am mistaken in any way, please point it out to me!
    As a side note here, where is anybody’s written guarantee that they will actually get a fair trial? When the administrators of the legal system are shown to be biased and incapable of being fair, isn’t it pure delusion to think that we will be treated fairly in the legal system??

    1. Obergefell? Lawrence? Roe? The Left would likely not prefer a world in which states & individuals could pick & choose which decisions to follow.

  10. It is a fundamental of contract law that a person can not be forced into a contract. Though the free speech argument would be strong enough to carry the day, it should not even get to that point: these cases ought to be complete non-starters.

    1. The problem you have is that when you open your business to the public, you cannot discriminate against a class of people.
      So for example… if you don’t have a handicap ramp, and a handicap person makes a ‘reasonable accommodation request, the burden is on you to show that its not reasonable. Otherwise you lose the lawsuit and are out a bit more money.

      Here, if you server everyone, but kick out the gays… you are breaking the law. However if you do sell to the gays, but not gay marriage themed cakes due to your religious beliefs… you are ok.

      So your idea of contract law fails. What does work is that compelled speech is not free speech. So if you don’t believe in gay marriage and you’re asked to provide a specialty item to a gay wedding… you can refuse.


      1. However if you do sell to the gays, but not gay marriage themed cakes due to your religious beliefs… you are ok.

        Do you mean “you are supposed to be ok”? Because in the slew of cases against Christians business owners, the defendant has only objected to the wedding. The business owner has not objected to serving the person based on sexual orientation – and in many cases has served that person before.

  11. The flower shop is demonstrating that it is too risky to contract with them for an event.

    If I was a wedding planner or other vendor that used fresh-cut flowers as part of my service, I would not choose any florist that might arbitrarily fail to perform on their contract and subsequently put my business in a bad situation or light. Regardless of their politics, I would never do business with them based solely on what they did here.

    Imagine if this happened. I sign a contract with Client A to plan organize a meeting at a venue. Client A likes to to have freshly arranged flowers placed on tables during the meeting and nearby the speaker’s platforms. I am to receive $7,000 in revenue for this event and from that I contract with the venue, call in caterers, staff, a photographer and a florist. I will receive $1000 for my services in profit.

    If the florist acts like the one in this article, they would discover the meeting was for, say, the boy scouts and they don’t like the scouts. At the last minute not only do they pull out of the contract, but the florist posts on their website that boy scouts are racist so they refuse to send flowers to racists. Now, I have to scramble at the last minute to find flowers and my client is livid over the controversy they did not chose to involve themselves in. I now lose the boy scouts contract and they tell everyone not do do business with me due to my association with this florist. Which is now of course over with, but I still suffer the damage.

    The florist here might think they are winning a lot of liberal praise, but as Judy. Blume (which coincidentally means Flower in German) discovered, even among the left you can never be leftist enough. Why risk trouble from a florist like this when there are others who simply arrage flowers and get paid?

  12. It’s a mark of a dysfunctional civil society when people resort to law fare rather than let the marketplace of ideas and rational discursive fora sift their disagreements.

  13. Businesses should be free to serve – and NOT serve – whomever they please for any reason or no reason at all. Period. The End.

    1. Bzzzt wrong.
      We have over 60yrs of civil rights law that disagrees with you.
      Separate but equal violated ones rights. (Irony is that now the grandchildren of those who fought to stop ‘separate but equal’ now demand it. )

  14. In reading his column no one should miss that Turley sides with the florists on their political affiliated free speech grounds. No one should miss his pointing out the inconsistency of those liberals who oppose businesses that refuse their services on religious grounds and yet support those businesses who refuse their services on political grounds. That inconsistency may soon be resolved for those liberals.

    As Turley points out, the 303 Creative case for both religious freedom and free speech will be decided strictly on free speech grounds. That decision, if favorable to 303 Creative, should preclude further cases brought against any and all businesses who refuse to create expressive products for their customers. As Turley humorously yet aptly suggests, 303 Creative may well become the finished Masterpiece.

    1. Speech and religion fall under the same amendment. The deranged courts currently dislike Christianity–it is the loafer-approved viewpoint among the loafer and espresso set. Simply stated if one can refuse to arrange flowers, one can refuse to bake a cake. Any other viewpoint is lacking in logic. Commies, law and logic are not congruent.

  15. What these cases really are an affront to is not freedom of speech, but freedom of association. Bad constitutional law was made because of immoral conduct with respect to blacks. The Court acted with the best of intentions, but paved a road to freedom of association hell.

  16. The gorilla on your sofa question that looms above all of this posturing is, why does the government have any power over business’ right to discriminate? We are no longer in John Crow, so what is the reason for forcing any business to deal with anyone?

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