by Robert Post, Sterling Professor of Law, Yale Law School
Last month, DOJ filed an amicus brief last month in support of the petitioner in Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commiss. DOJ argues that First Amendment guarantees of freedom of expression preclude the application of Colorado’s general antidiscrimination law to a boutique bakery that produces custom-made wedding cakes. The DOJ brief raises important theoretical questions about the scope of judicial review under the freedom of speech clause of the First Amendment.
I yield to no one in my support of these First Amendment freedoms. But precisely because I treasure them, I think it important properly to understand and apply them, lest they be diluted and weakened during times of actual political repression when we will need their strong and clear protection.