I was reading one of the threads on the gay cake, and it seems an argument put forth by the baker is that he is an artist, and artistic expression cannot be compelled.
It seems to me that artistic expression is compelled all the time.
Leaving aside the fact that we compel it from schoolchildren, authors sign book deals, where they agree that if a finished work is published, and is successful, another one will be produced in a particular timeframe, and the writer can be sued if the second book is not forthcoming. Actors sign 2 and 3 picture deals all the time. Actors used to be studio players, where they were just handed scripts, and told “Here, this is the movie you’re doing.” Ballet dancers and musicians who belong to say, the NYC Ballet, or the Met, dance or play what they are told to dance or play. The choreographers and conductors have a lot of input, but even they ultimately answer to the directors of the institutions.
In fact, the higher up on is in an artistic profession, the fewer the choices. The greatest choice belongs to buskers in the park.
So I think the “cakemakers are artists” argument is a bit thin.
Other opinions?
NOTE: I put this in Cafe Society, since it’s about the nature of art, but if the mods think it would be better in IMHO, I understand that it could get moved. I really deliberated for a while before deciding where to put it, and finally decided on here, but if a moderator thinks better, I’m good with it.
Douglas Adams was a notable procrastinator. For one of the Hitchhiker books, his publisher literally locked him in a hotel room for two weeks until he finished.
Musicians frequently find themselves forced to write songs on a schedule.
E.g., Ray Parker Jr. was given only a few days to write the Ghostbusters theme. It was practically a last minute effort. Which ended up No. 1 on the Billboard charts for 3 weeks.
If you are a commercial jingle writer, you either do it on time or you starve.
And on and on.
Compared to these, icing a cake is hardly a job at all.
The OP makes a good point, in that with almost any principle you’ll find exceptions to that principle. Yes, artistic expression can be compelled in some cases. That’s why in the legal world, when you violate such basic rights, there has to be a compelling reason. In the case of schoolchildren, they have to learn and in order to learn they have to be forced to do things that enable them to learn. However, some students are exempted from some activities due to religious beliefs. For example, parents can pull kids from sex education courses.
In the case of commercial artists, it needs to be possible for artists and publishing companies to enter into contracts. “The artist can just make whatever they want, or even nothing” may be most consistent with the 1st amendment, but living in that reality would mean that no company could ever enter into a long term contract with an artist. However, religious freedom applies there as well, as well as all kinds of secular political freedom. A company cannot force an artist to curse on an album, or express certain political views. All they can really do is make them produce an album that sounds quite a bit like the last one, or write a book that logically continues the story from the last one, etc.
So there’s always going to be balancing of competing rights, but it’s important to remember that constitutional rights take precedence over non-constitutional faddish ideals or mere statutes.
If I get handed a script and told “this is the movie you’re doing,” I can reply with a “no,” followed by an “and get the hell off my property.” I have to first sign a contract to be a studio player, and then I can get told what to do.
If, as you say, I’ve signed a book deal – well, then, yes, I have to produce a book or get sued. But if I haven’t yet signed that book deal, I – don’t.
You mention ballet dancers and musicians “who belong to say, the NYC Ballet,” and who “dance or play what they are told to dance or play.” But if I’m a dancer or musician who doesn’t yet “belong” to the NYC Ballet, why would I answer to them?
The differences are that there is no content discrimination. The artist agrees to produce a piece of work of a general type, which gives him or her very broad discretion to decide what he’s comfortable with.
Let’s say that Ray Parker was one of those Christian dudes who wanted nothing to do with a movie about spirits and ghosts, or perhaps he had a problem with the sex and smoking in the movie. Even if he was under contract to the publishing company, they could not make him write a song for the movie unless he specifically agreed to write for the movie beforehand or his contract stated that he’d do any project the studio wanted. I’ve never heard of an artist, no matter how poor, consenting to something so open-ended. Artist contracts are usually of two types:
You will make your art for us exclusively, whatever art that might be.
You will make specific art for a specific project as laid out in the contract.
I’ve never heard of an artist contract where the artist agrees to make whatever, whenever, under threat of breach of contract. Generally, the only consequence of refusing a project is that it goes to someone else. Had Parker refused Ghostbusters, they would have given it to another one of their stable of artists.
It is all about basic professionalism: nobody compels you to sign the book deal (or take the DJ gig, or painting commission) in the first place, but once you do, you are obligated to come up with the goods.
Not sure what that has to do with the cake guy; on one hand, the customer is always right, so there is that to consider (and strongly seems like the default for a bakery); on the other hand, if you really don’t want a job, better refuse it from the beginning. [ETA not sure what the criterion for “really” would be for a baker: the professional thing to do is to put on a smile and write on the cake what the customer wants.]
Ah, and in regards to the NYC ballet, it’s true that they do whatever they are assigned to do. But you’ll never see the NYC ballet take that discretion too far.
Take SNL for instance. SNL once had Andrew Dice Clay as a host. Many of their female players sat the episode out because Andrew Dice Clay is a misogynist. There were no consequences other than that they may not have gotten paid that night. I’m sure if the NYC ballet does “a tribute to Steve Bannon” that there will be some walkouts. And if they try to punish those walkouts with anything other than docking their pay for the night, they’d have a legal battle on their hands.
It’s a longstanding legal doctrine that the First Amendment not only protects speech but protects one from being compelled to speak (with a few exceptions). The examples described are not to the contrary. The remedy for breach of contract to produce or perform an artistic work is invariably some amount of money as damages, and possibly an injunction preventing the artist from getting paid to do a competing job. As far as I know, no court will compel someone to produce an artistic work, which is why so much of the legal battle in the cake case seems to be over whether what the baker was doing qualifies as artistic expression.
Note that this is also why it’s usually permissible to offer roles in a play or a movie only to actors of a particular sex or race without running afoul of antidiscrimination law. The director’s casting choices are typically regarded as artistic decisions.
This seems to hit the nail on the head. An artist - or anyone else, for that matter - must fulfill a valid agreement, or contract. If there was no agreement or contract, then how can one party be compelled to produce something that has not been agreed to? I also read the “artist defense”, but this whole case seems much more basic to me - was there a meeting of the minds and an agreement to do something for some amount of payment? It sure seems that there wasn’t. Whether an artist or not, how can someone be compelled to use their talent/time/effort if they don’t agree to do so?
When someone sets up a shop, though, don’t they enter into some kind of contract with the community? I mean, if you live in a small town, there might be room for only one professional cake baker, so there might not be an alternative. When the baker sets up shop, and precludes competition, doesn’t he enter into some kind of contract with the town to bake its cakes? Isn’t that part of being a service provider, whether your service has a artistic turn or not?
I think part of this gets muddy because people hold this idea as an “artist” as someone doing some kind of sacred act of creation, when, in fact, that’s generally not the case.
Pay me to make a widget, or pay me to draw a picture; ultimately, we’re talking about the same thing: providing a skill/labor for a fee.
Just because my skill involves a pen and paper and pretty pictures doesn’t mean that the rules and ethics governing my particular skill are somehow different than those that govern other tasks.
If you can be compelled to sell your widgets to everyone, you should be compelled to sell cakes to everyone. This is true even if the widget is hand-carved and etched and artisinal and shit, and even if the cake comes from a Duncan Hines mix.
Agreed. If one takes a job, let alone signs a contract, of course he has to do what TPTB requires of him.
It’s a different story with the government. With only a few exceptions, such as paying taxes or registering for the draft, the government can’t compel you to do anything.
You make a great point here which doesn’t get enough attention: art is not sacred. The 1st amendment was not written to protect art. It was written primarily to protect political speech. But art is also protected of course. And “art”, much like “the press” is actually legally defined a lot more broadly than many believe. Art is anything you create that is yours and yours alone. An operating system has the same legal protection as a painting, at least in terms to the 1st amendment(copyright law is a different matter).
No, yes, no, and some lines are legal and some aren’t.
I think a key component of the cake case is that in the Supreme Court case, there was no request for anything written on the cake or otherwise would have differentiated it from any other client’s cake.
But there is. An ordinary shop, say, Aldi, decides that $1.99 a gallon would be an acceptable amount of money for them to get for a gallon of milk. A customer sees the flyer, and decides that that’s also an acceptable price for them. They go in to the store, pick up a gallon of milk, and pay the cashier $1.99 . Both agreed that that was a reasonable price for milk, and so there was a meeting of the minds. It was just reached in a convenient way that didn’t require any haggling or negotiation. And if Aldi decided to sell their milk to some people but not others, they could get into trouble.
I don’t know precisely how the business model works for a cake baker, but I imagine that there’s some sort of published pricing. That’s the baker stating a price that he considers acceptable. And if the customer also thinks that pricing is acceptable, he comes in and buys a cake.
I don’t know if that’s exactly my point, but it’s close.
More like: all action is self-expression. Therefore, if you’re going to insist that having to sell your product to certain customers is an infringement of freedom of speech, you need a strong and and defensible argument as to what makes cake-baking fundamentally different than widget-making. And, I don’t think there is one.
Aldi has milk on its shelf, for customers to grab. Wedding cakes are not on shelves, they must be ordered and then created on demand.
Even with this difference, I am pretty sure stores are allowed to deny to sell to anyone they want. In other words, just because the store is open doesn’t mean they have to sell to everyone who comes through the door. I believe businesses can refuse service to anyone they want. “No shoes, no shirt” comes to mind.