There are a number of new laws that will kick in in 2024, but one of the most interesting fights are likely to over the new California law requiring stores with more than 500 employees to carry “gender-neutral” toys over face state fines. The law, signed by Gov. Gavin Newsom in 2021, is likely to trigger free speech challenges.
The law covered childcare items, which is defined as “any product designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething.”
The requirement of a gender-neutral section could be opposed by businesses on religious or other grounds. Notably, this applies to relatively large businesses. In the past, companies like Target have been boycotted for selling “tuck-friendly” items opposed by some consumers. While there is likely to be a backlash, these companies can argue that this merely following the law rather than pursuing woke corporate policies.
The law could return courts to defining the free speech rights of corporations and the question of compelled speech. It is an interesting variation on the case of the recent 303 Creative ruling of the Supreme Court, which is discussed in my recent law review publication as well my forthcoming book.
In that case, the Court ruled in favor of a website designer who refused to work on same-sex marriage projects. That case, however, involved products made by the designer with “expressive content.” This is requiring the selling of products made by others.
In 2010, in Citizens United v. Federal Election Commission, the Court held in favor of a company in striking down political campaign limits as a denial of corporate free speech rights.
In 2014, in Burwell v. Hobby Lobby, the Court ruled in favor of a privately-held, for-profit corporation that it could refuse to cover contraceptive services under the Religious Freedom Restoration Act of 1993.
This case presents a different but arguably analogous issue of corporate free speech. A major element for challengers is to find an ideal plaintiff with long-standing religious objections to such gender neutral products to make the strongest case for government-compelled speech.
The question is whether a state can compel a state to sell items that it or its customers consider to be morally offensive. If so, what is the limit on such state power? While these are not expressive products of created by the owners, it is still compelling the store to associate with such products and their inherent message or values. For example, if Jack Phillips of Masterpiece Cakeshop is no longer required to make same-sex cakes, could it be required to sell pre-made same-sex cakes created by others?
As many on this blog are aware, my natural default remains with free speech. However, people of good faith can disagree on such questions. The court may soon be involved in answering these questions what is likely going to be a novel and important challenge out of California.