"Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like..."

"... and to the extent that cakes are used in ceremonies, their significance is inextricably tied to their being eaten, not to any message they visually convey," argue Dale Carpenter and Eugene Volokh in an amicus brief in the Masterpiece Cakeshop case (PDF):

To be sure, cakes often do convey messages in the writing or graphics on the cake itself. Cake-makers might indeed have a First Amendment right to decline to include such written or graphic messages on a cake. The cake itself, though intended for use in a ceremony, is not itself generally expressive of any message (other than perhaps the fact that 'this cake is intended for use in this ceremony'). Nor can wedding cakes be viewed as inherently expressive, or traditionally protected, simply by raising the level of generality and calling wedding-cake-making 'art.' Much in life is art in the sense that it is aimed at creating beauty, including beauty identifiably linked with some ceremony or some style.  Cooking is often said to be an art.

At this point there's a footnote to 3 cookbooks with the word "art" in the title, one of which is by Anne Volokh ("The Art of Russian Cuisine").

Even setting the table to present food is an art, with a long historical pedigree. Subway calls its sandwich-makers 'sandwich artists.' But a restaurant may not refuse to cook or prepare a table for certain customers on the ground that would be a speech compulsion....

The relevant Free Speech Clause question is not whether a merchant customizes a product, but whether the customization communicates protected expression.... No one looks at a wedding cake and reflects, “the baker has blessed this union.”... Phillips may subjectively believe that making the cake would have communicated a message about his clients’ marriage, but there is not a substantial likelihood “that the message would be understood by those who viewed it.”...

Requiring bakers to design a cake using certain words, symbols, or other politically significant design elements, might... be an unconstitutional speech compulsion. Even if the choice to wear certain styles of clothing is not protected by the First Amendment, restrictions on wearing certain words on clothing are unconstitutional, see Cohen v. California, 403 U.S. 15 (1971); the same goes for cakes...

This case is about Phillips’ categorical refusal to provide a particular sort of product to customers based solely on their sexual orientation reflected in the event for which the product was to be provided, in violation of a state public accommodations law. It is not about any refusal on Phillips’ part to speak through his cake creations.

Carpenter and Volokh side with the Colorado Civil Rights Commission against the cakeshop. You can compare their argument to the one in the Cake Artists amicus brief, which we discussed a little while ago here. The Cake Artists refrained from taking a side, but they want what they do to be given the status of "expressive art." They want "the same respect under the First Amendment as artists using any other medium."

The difference between these 2 briefs isn't about what is art, but what is expression. Carpenter and Volokh say you've got to draw the line somewhere, and they rely a lot on whether there's already a tradition of regarding something as form of expression protected by the First Amendment:

Jackson Pollock paintings are protected because they are special cases of a broad medium — painting — that has long been used to communicate expression.

Are paintings protected because we see them as encoding a message that reminds us of something that could have been put in words?



Why do courts protect that, really? Well, there's the tradition argument: Courts protect paintings because they've protected paintings in the past, and anything that's literally a painting — even if it's off the stretchers and the brush never touches the canvas — gets the traditional protection.

But let's look beyond tradition — even though opponents of gay marriage got deeply wedged into tradition-based arguments. Go back to the Carpenter/Volokh quote I put in the post title. I see some substance here: "Cakes do not convey the rich, complex expression that can be conveyed by words, music, images, and the like." We might say to extend the protection beyond what is traditional, courts should look at whether the supposed expression achieves complexity and richness.

The Cake Artists brief has material for putting together a complexity-and-richness argument for the protection of wedding-cake expression. But the complexity-and-richness standard smells of elitism and overeducation. The one case citation I left in, above, is Cohen v. California, where the protected speech was simple and cheap: "Fuck the draft." 

And did Pollack really have anything complex or rich to say? I don't think there's a message to be decoded from the dried dribbles. He made an object, and the object is protected because it was made by an artist, and we've been reverential about the artists we consider real artists for a long time.