The Same First Amendment That Protects Lorie Smith Protects the Target Corporation

Walter Olson

Seven conservative state attorneys general led by Indiana’s Todd Rokita have sent a letter to the chairman and CEO of the Target Corporation, Brian Cornell, threatening ill‐​specified legal action because of the retailer’s sale of Pride merchandise including t‑shirts, onesies and other children’s apparel, as well as its financial support of the private advocacy group GLSEN (Gay, Lesbian, and Straight Education Network). The letter is an effort to chill the retailer’s liberty to engage in conduct protected by the First Amendment to the Constitution; beyond that, much of it is based on false, incoherent, or simply missing legal analysis.

Target’s sale of Pride merchandise has generated controversy and backlash, some of it factitious, but whether you consider the bibs and tote bags cute or cringe is neither here nor there. Let’s instead cut to the legal chase: inasmuch as they send a message by displaying controversial words and symbols, they are plainly speech for First Amendment purposes. That is why the authorities in Lexington, Ky., were plainly in the wrong ten years ago when they threatened charges under municipal anti‐​discrimination law against a screen printer that declined to print message shirts for a gay rights organization. (The complaint was eventually disallowed on other grounds.) I’d be surprised if prominent legal conservatives like these seven state officials don’t know about that compelled‐​speech case, which stirred justified outrage more than a decade before the case of Lorie Smith and 303 Creative v. Elenis. (Besides Rokita, the attorneys general are Andrew Bailey of Missouri, Tim Griffin of Arkansas, Daniel Cameron of Kentucky, Raul Labrador of Idaho, Lynn Fitch of Mississippi, and Alan Wilson of South Carolina.)

Rokita’s letter suggests that the merchandise Target offered for sale might be deemed obscene or “harmful to minors,” but as attorney Ari Cohn points out, it is vanishingly unlikely that any federal court would find the actual merchandise to fall under the existing legal definitions of these terms, which tend to require (among other things) the presence of nudity, sexual conduct, and the like. Perhaps grasping the weakness of this legal ground, Rokita’s letter goes on to cite entirely irrelevant legislation on such topics as what books should be stocked in public school libraries. It also curiously invokes parental rights, although its gist is to assert the authority of government rather than parents, to the point of dismissing the autonomy of parents who are presumably capable of deciding for themselves what bibs are welcome in their homes or as a gift at their baby showers.

Particularly disturbing is the letter’s suggestion that Target has somehow overstepped a legal line by contributing to the private advocacy group GLSEN. It seems based on the idea that not only is there something unlawful in being a group that advocates for some kinds of wrongheaded laws and policies, but it might be unlawful even to be a donor to such a group. Even if you don’t think drawings on t‑shirts exemplify core protected political speech, this clearly does. Writes Cohn: “This thinly‐​veiled threat that Target could face prosecution if it doesn’t stop donating to advocacy that government officials don’t like is wholly beneath contempt, and should be repulsive to every American.”

The letter falls into the unlovely official tradition of “jawboning” to apply pressure against otherwise protected speech — a pattern we’ve seen elsewhere, for example, in some progressive governments’ economic war against Second Amendment advocacy. As Cato colleague Will Duffield wrote the other day, commenting on a widely noted July 4 ruling by federal judge Terry Doughty in a case over White House jawboning of social media platforms, it can be quite difficult “to draw clear lines between constitutionally acceptable notification and even persuasion, and impermissible pressure and bullying.” That is, at least, unless the government actors get truly blatant about threatening to use their government powers in an effort to coerce the takedown — as here.

In a piquant juxtaposition, Andrew Bailey, the attorney general of Missouri, took a victory lap after his state won a favorable ruling in the social media case, only to turn around the next day and appear as a signatory of the Rokita letter. It all depends on what level of government is doing the browbeating to accomplish the takedown, doesn’t it?