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Publication Date

2020

Abstract

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities violated his rights against
compelled speech. But the union would be speaking for
him—representing him along with all of his fellow
employees in labor negotiations—whether or not he was
made to pay union dues. His free speech claim was then
a smoke screen used to protect a purely pecuniary
interest—or an off-label rights exercise, and an
opportunistic one at that.
Second, in Masterpiece Cakeshop, Ltd. v. Colorado
Civil Rights Commission, a baker who opposed same-sex
marriage on religious grounds argued that requiring
him to provide custom wedding cakes to same-sex
couples violated his free speech rights. But, as in Janus,

speech was incidental to the baker’s true interest. Had
the Court granted the baker’s free speech claim—finding
that he could deny a gay couple a wedding cake with
unique artistic designs but still requiring him to provide
an unadorned cake—the baker would likely have been
no better off. For speech or artistry does not implicate a
wedding vendor in a same-sex marriage any more than
a non-expressive contribution does. Here, too, then the
free speech claim was off-label—an effort to leverage the
law’s greater solicitude for speech relative to religious
freedom even while the baker does not have the
expressive interests grounding constitutional rights to
free speech.
This Article uses cases like the baker’s, which the
Court will almost surely revisit, to advance a theory of
the proper scope of constitutional rights, distinguishing
between on- and off-label rights invocations. To that end,
the Article’s first aim is to establish that artistic wedding
vendors’ invocations of the Free Speech Clause are in
fact off-label.
The Article’s second and larger aim is to critique
off-label constitutional rights exercises. This Article
argues that every off-label rights exercise demeans the
asserted right and risks creating intolerable inequality
relative to the person who shares the litigant’s true
interest but who cannot make her claim fit within the
contours of the misappropriated right. For that reason,
the Article concludes that courts have good reason to
deny off-label rights claims—especially in cases like the
wedding vendor challenges.

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