Cake Bakers and Sexual Predators
Cake Bakers and Sexual Predators: Which Forms of Speech are Protected Under the First Amendment and How This May Shape Criminal Defense in the Future
The news has been inundated with stories on the now-famous Colorado cake baker who refused to bake a cake for a same-sex couple, and the subsequent legal battle that resulted. A less reported on, but nevertheless legally relevant case to criminal defense work is the story of Lester Gerard Packingham’s fight to use the internet following his registration as a sexual predator. As unusual as it may sound at first, this cake baker and this registered sex offender may shape a new era of freedom of speech law.
On June 26, 2017, the Supreme Court agreed to hear the “Clash of Cake and Faith,” and review the Colorado Supreme Court decision. The case arose when Charlie Craig and David Mullins visited Masterpiece Cakeshop to purchase a wedding cake for a wedding reception in Colorado (at that time, same-sex marriages were not yet legal in Colorado and they planned on getting married in Massachusetts). The owner of Masterpiece, Jack Phillips, refused to bake a cake for a same-sex marriage, he volunteered to offer any other goods he could produce to the couple, but stated that a wedding cake would violate his personal convictions as a Christian. The couple felt this refusal was an illegal, possibly criminal, civil rights violation – they took the case to the Colorado Civil Rights Commission for review. The Administrative Law Judge reviewing the case and the Civil Rights Commission agreed that this was a discriminatory action and ordered a cease-and-desist to the bakery, along with mandatory remedial actions. Phillips appealed this decision to the Colorado Court of Appeals, arguing that the case should have been dismissed originally. Phillips legal argument was that his wedding cakes are an extension of his speech, that baking a cake for a same-sex couple’s wedding reception would be speaking in favor of such a union – one that he held deep religious beliefs was morally wrong. Further he argued that he did not decline to make the cake “because of their sexual orientation” to discriminate, the record showed that he offered to bake them anything else they wanted, he only refused this one item which was an extension of his speech against their marital union. The Court of Appeals did not agree with argument, holding that, “in some cases, conduct cannot be divorced from status;” in the case of same-sex marriage and sexual orientation, conduct and status were nearly inseparable. The Court upheld the lower decision, agreeing that implementation of the anti-discrimination law did not force Phillips to speak against his deeply held convictions, he was free to operate a business or not operate a business in the state as he chose. No one is legally allowed to do so in a discriminatory manner though. The law was deemed “generally applicable,” because even though it did not cover all individuals and entities, it did not target religious conduct specifically. A “generally applicable” law is allowed more freedom to regulate behavior because it is not targeting a specific class of individual. The next step for the case will be review by the Supreme Court to see if they agree with the Colorado analysis.
Unlike Phillips’ fight to vindicate what he believes are his First Amendment rights, Lester Gerard Packingham’s case has already been heard by the highest court in the nation. North Carolina enacted a statute in 2008 that created a felony for any sex offender “to access a commercial social networking Web [sic] site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web [sic] pages.” In 2010, Packingham posted a statement on Facebook, and a Durham police investigation revealed that he was the poster. He was subsequently convicted of violating § 14–202.5. The trial court denied Packingham’s motion to dismiss on First Amendment grounds, but the court of appeals disagreed and struck down the law, for failing to narrowly tailor its prohibitions. The Supreme Court of North Carolina did not agree that the legislature failed to narrowly tailor its prohibitions, ruling that because specific types of sites were prohibited in the statute, and because the conduct only had an incidental effect upon speech (requiring a general effect evaluation) – this provision was constitutional. Similar to the upcoming Craig decision, the Supreme Court was tasked with deciding whether this statute was a violation of First Amendment protections on freedom of speech. The Court evaluated the North Carolina criminal law and noted that “no case or holding of [the] Court has approved of a statute as broad in its reach.” A law regulating speech must be “narrowly tailored to serve a significant government interest,” and cannot “burden substantially more speech than is necessary” to protect that interest. The Court concluded that based on past precedent, this was not met with the North Carolina law. Any law banning a specific class of people from a general prohibition on speech will likely not be able to stand.
This ruling and holding present questions for the future. How does this affect the upcoming Craig decision? And what does this mean for the average citizen? First, it may appear as if the Court will reject the Colorado court’s ruling, surely the rights of religious expression are as important as a sex offender’s right to use Facebook. The analysis is unfortunately not this simple. The Court’s role is not to weighed the rights of a convicted criminal, and then separately the same right of a man exercising religious speech. Even if they were to perform this analysis, they would likely be roughly equal; all citizens have the right to discuss, analyze and respond to one another’s speech without government interference. There is no constitutional legitimacy placed on one form over another. The analysis turns on the applicability and the breadth of the laws in question. As discussed prior, the Colorado anti-discrimination law was determined to be of “general applicability” because it applies to almost all citizens who are engaging in business in the state of Colorado. If the Supreme Court agrees with this analysis, the law will have to be narrowly tailored, as the Court discussed in Packingham. In defense of his right to refuse free speech he finds reprehensible, Philips will likely continue to argue that the statute is not general in nature because there are exemptions included for religious institutions, but not businesses such as his. Philips has not argued that his bakery is in any way a religious organization and should be afforded these exceptions; instead he argues only that this makes the law specific in nature (similar to the North Carolina law in Packingham). The Court is likely to agree with the Colorado court and reject this rationale. The Colorado law forbids any discrimination based on sexual orientation regardless of motive. The law is generally applicable and is neutral in its application – it does not restrict the rights of once class of citizens, but is instead in place to give a wholly different bundle of rights to all citizens, protection from discrimination. The Packingham decision does not seem out of place with this prediction when the cases are compared, not by types of speech rights, but rather the nature of the laws restricting those rights. The ironic place these two cases sit in is their inverse nature of one another. Packingham overturned a law prohibiting specific types of internet use, because the law infringed too much on his right to free speech. The law in Craig will likely be upheld to prevent all forms of discriminatory “speech” actions from businesses because, it is a neutral ban, without being overly specific. If the class of individual each law was designed to regulated were reversed, each case would likely come out in the opposite manner.
Going forward, criminal defense attorneys will need to prepare for the ramifications of these decisions. The “general applicability vs. strictly applicable, but narrowly tailored” analysis, is not a genesis of the current Court. The contemporary, psuedo bright-line application of these rules by the Court will increase predictability when deciding which laws are constitutional and which behaviors are protected. First, those who’s rights to speech are being restricted by a broad law have a cause of action to challenge that law. Felons who are restricted from accessing any form of speech will likely be able to use the Packingham decision to challenge that retroactively. It is up to criminal defense lawyers to also actually raise challenges, and fight the application of these post-conviction restrictions proactively. Criminal defense attorneys need to be watchful for the upcoming Craig decision as well. It is ill-advised to view Packingham as a legitimization of speech when restricted by a general, neutral law. Unless the Court overturns the Colorado decision, a law which applies to almost all people, and neutrally creates an obligation restricting speech should be followed. Criminal defense attorneys need to distinguish between these two types of laws, both when informing clients of proper actions, and when measuring the validity of any challenges. However, the court rules in Craig, the June 26 announcement that it will be heard, coupled with the June 19 decision in Packingham, show that the court is entering a new era of First Amendment clarification. No matter how the court ultimately decides to define freedom of speech; everyone, but especially criminal defense attorneys, should be watchful of the effects.
-Article written by Brent Marshall, Law Clerk for Pumphrey Law Firm.
 Roger Parloff, Christian Bakers, Gay Weddings, and a Question for the Supreme, The New Yorker (Mar. 6, 2017), http://www.newyorker.com/news/news-desk/christian-bakers-gay-weddings-and-a-question-for-the-supreme-court. See Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272 (Colo. App. 2015).
 John H. Tucker, Durham Man Challenges Law on Sex Offenders and Social Networking Sites, Indy Week (May 29, 2013), https://www.indyweek.com/indyweek/durham-man-challenges-law-on-sex-offenders-and-social-networking-sites/Content?oid=3645173.
 Adam Liptak, Justices to Hear Case on Religious Objections to Same-Sex Marriage, The New York Times (June 26, 2017), https://www.nytimes.com/2017/06/26/us/politics/supreme-court-wedding-cake-gay-couple-masterpiece-cakeshop.html.
 Parloff supra, note 1.
 Parloff supra, note 1.
 Craig, at ? 4, 370 P.3d at 276.
 Id. at ?? 6-8.
 Id. at ?? 30-32, 370 P.3d at 280-81.
 Id. at ? 34, 370 P.3d at 281.
 Id. at ? 72-73, P.3d at 288.
 Id. at ? 86, 370 P.3d at 290.
 Id. at ? 79-80, 370 P.3d at 289 (citing Emp’t Div., Dep’t of Human Res. V. Smith, 494 U.S. 872, 879 (1990).
 See Lester Gerard Packingham v. North Carolina, No. 15–1194, 2017 WL 2621313 *1, *1 (U.S 2017).
 Id. at 1 (quoting N.C. Gen. Stat. Ann. §§ 14–202.5(a), (e) (2015)).
 Id. at 3 (citing Lester Gerard Packingham v. North Carolina, 229 N.C. App. 293, 304 (N.C. CT. App. 2013)).
 State v. Packingham, 368 N.C. 380, 384, 389 (2015).
 Packingham 2017 WL 2621313 at *1.
 Id. at *7.
 McCullen v. Coakley, 134 S.Ct. 2518, 2543 (2014) (citing Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989)).
 Id. at 2535 (citing Ward, 491 U.S. at 799 (1989)).
 Packingham 2017 WL 2621313 at *1.
 See supra text accompanying notes 11-12.
 See supra text accompanying notes 18-20. See generally McMullen, 134 S.Ct. at 2535-2543; Ward, 491 U.S. at 789-799.
 See supra text accompanying notes 11-12.
 2017 WL 2621313 at *7.
 Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, ?85, 370 P.3d 272, 290 (Colo. App. 2015).
 Id. at ?89, 370 P.3d at 291.
 See generally 2017 WL 2621313 *1.
 See generally Id.
 See generally Craig, 2015 COA 115, 370P.3d 272.
 If the North Carolina law prohibited all citizens from a specific type of internet use that had public policy reasons, this would likely be acceptable. Alternatively, if the Colorado law only applied to cake bakers, or some other specific class, the prohibition would likely be overly broad and that law would instead be overturned.
 This especially applies when it is an action not inherently tied to an outward statement such as baking a cake, but still likely applies in more traditional free speech actions.
Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.