Is Cake Art?-- Meet The "Pistol Pete" Wedding Cake

 

This is a wedding cake. Here is the story from cake artists brief in Masterpiece:

"Another imaginative wedding cake (or in this case, a groom’s cake), had its origins in as unlikely a place as the pig barn at the Oklahoma State Fair. That was where the future bride and groom met. They were agriculture students at Oklahoma State University, “showing” pigs for the school. The details of how they met became a central part of their story as a couple. Accordingly, they asked Jennifer Jones of Icing On The Top to construct their story through cake so that they could exhibit it at their wedding reception.
The cake depicts Oklahoma State mascot “Pistol Pete” riding atop a pig. When finished, the cake was three feet high, weighing 125 pounds. The final result is both impressive and hilarious.
But it was also a monumental undertaking." 

This wedding cake tells this couple's  love story. It is art. It is speech. To compel a cake artist to create such a cake is to compel speech.

Prof. Akil Amar on Texas v. Johnson and Symbolic Expression:

"Symbolic Expression Is Fully Embraced by the First Amendment. - The flag is a symbol. So is the cross. The right to wield and manipulate these symbols is fully protected by "the freedom of speech, [and] of the press. ' The First Amendment does not speak of protecting only "words." The Amendment vests Americans with a broad right to communicate with each other. This communication takes place through symbols that represent ideas, events, persons, places, objects, and so on. In fact, words are themselves symbols. In English, words are made by combining 26 standard letters, but surely the Amendment protects communication in languages that rely on unique word-pictures, pictograms, or hieroglyphics. Surely there is no First Amendment difference between the word "cross" and the pictographic symbol "+"; between the letters "NAZI" and the crooked cross swastika hieroglyph...that represents the same ugly ideas; or between the words "American flag" and the unique red, white, and blue, star-spangled symbol impressed upon banners. Nor is it relevant for First Amendment purposes that one does not orally "speak" a flag or a cross the way one orally speaks words. Is a deaf citizen's communication by sign language unprotected because it is not oral? Does the flag not "speak" to us, in every relevant and nontrivial sense? Does not the cross in a worship service? Does not the written Constitution? In any event, even the most willful and stubborn literalist must recognize that the First Amendment yokes the freedom of speech to the freedom of the press and thereby signals an intent to embrace all communication, regardless of the precise medium of transmission. Quite literally, the unique ink marks printed and pressed upon a cloth are what make the cloth a flag in exactly the same way that the unique ink marks printed and pressed upon a sheet of paper make it the New York Times....

 If all of this seems to belabor the obvious, I hasten to point out that many of the participants in the flag-burning debate failed to understand these simple points. Again and again, they confused the
physical and the symbolic in speaking of their desires to protect the 'physical integrity' of the flag.  But the flag is, in its deepest sense, not physical. Like a word, it is a symbol, an idea. It cannot be destroyed; it is fireproof. One can destroy only single manifestations, iterations, or copies of the symbol."--106 Harv. L.Rev. at 133-135.

Now, think back to Jack Phillips and his custom wedding cakes in Masterpiece Cakeshop. Speech? Or non-speech? Is a custom wedding cake designed to express a message or an idea celebrating an event and the persons participating in an event (to paraphrase Prof. Amar)? Or is it just food, no different from a cheeseburger or a pizza?