Article by Sonya G. Bonneau
The romantic author trope has been extensively criticized in the copyright context, yet it threatens to emerge as a new pillar of First Amendment compelled speech jurisprudence. Justice Thomas's concurring opinion in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission exemplifies the trope's rhetorical power and the costs of that approach. Casting the baker as an artist, Justice Thomas found that creating custom wedding cakes was speech, and that applying a public accommodations law to require service to a same-sex couple triggered strict scrutiny review. This is an extraordinary result. Although the United States Supreme Court never adjudicated the compelled speech claim, it will take up the issue in 303 Creative LLC v. Elenis, where the artist owns a website design business.
This Article historically contextualizes the romantic author construct, charts its emergence in First Amendment law, and deconstructs the over-heightened autonomy interest it imports into Justice Thomas's concurring opinion in Masterpiece. This idealized speaker lens does substantial work in suggesting a presumptive constitutional violation arising from a law prohibiting discrimination in public facing businesses. The trope privileges speaker autonomy and subjectivity to a degree that legitimizes the erasure of customers--and disavows the state's authority in assuring equal access to goods and services. The high-stakes conflict of rights in Masterpiece and similar wedding vendor cases demands context-sensitive analysis, which the transcendent, self-regarding lens of authorship obscures. The central claim of this Article is that wedding vendor cases misapply the romantic ideal, exalting subjectivity and expressive autonomy while swallowing the conflicting rights animated by customer interactions.
About the Author
Sonya G. Bonneau, Professor of Law, Legal Practice, Georgetown University Law Center. Thanks to Eun Hee Han, Greg Klass, Susan McMahon, Naomi Mezey, Chris Newman, Jeffrey Shulman, Robin West, and Jessica Wherry for their helpful feedback at different stages of drafting, as well as Georgetown Law's S.J.D. and Fellows Seminar and the Legal Practice Reading Group. An early-stage treatment benefitted from suggestions by the participants, especially Fred Yen, in the Art Law Works-in-Progress Colloquium hosted by Peter Karol and Guy Rub. Thanks to Emma Scully for her excellent research assistance. Special thanks to the editors of the Tulane Law Review.
Citation
97 Tul. L. Rev. 53 (2022)