Apple CEO Tim Cook came out forcefully last year against religious freedom and called on others to join him. True to form, Apple earlier this month announced its opposition to a very modest Georgia religious freedom law which was eventually vetoed by Gov. Nathan Deal.
A main impetus for these laws was (and remains) growing concern over the sharp increase in the government coercing religious business owners to create or promote expression that violates their beliefs. In the current cultural climate, many of these legal skirmishes are playing out in the same-sex marriage context. In just the last few years, various state governments have taken aim at florists, cake artists, and photographers who have declined to create expression celebrating ideas about marriage that violate their religious beliefs.
By opposing religious freedom laws, Mr. Cook is using the full and considerable influence of Apple (No. 1 in the Fortune 500) to ensure that small, often family-owned and operated businesses cannot conscientiously object to government mandates they find offensive.
So it was with a deep sense of irony that I read Apple's recent federal court filing in its much publicized legal battle with the FBI, where it invoked the very freedom it seeks to take away from mom and pop shops.
Recall that Apple is resisting a court order requiring it to create a backdoor to the encryption that is blocking the FBI's access to information on one of the San Bernardino terrorist's iPhones. Here are just a couple offerings from Apple's brief:
- "Under well-settled law, computer code is treated as speech within the meaning of the First Amendment."
- "The government asks this Court to command Apple to write software that will neutralize safety features that Apple has built into the iPhone in response to consumer privacy concerns. . . . This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment."
Religious business owners make the same arguments in resisting court orders to create artistic expression celebrating marriages that violate their beliefs. In fact, all you have to do is change a few words in Apple's briefs to reflect the arguments religious business owners typically make.
- "[T]he Court's Order discriminates on the basis of viewpoint. . . . The government disagrees with [Apple's] position [on privacy] and asks this Court to compel Apple to write new software that advances its contrary view. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment."
- "Under well-settled law, [photography] is treated as speech within the meaning of the First Amendment."
- "The government asks this Court to command [Elane Photography] to [tell a story through photography] that will [violate its sincerely held religious beliefs about marriage] . . . . This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment."
- "[T]he Court's Order discriminates on the basis of viewpoint. . . . The government disagrees with [Elane Photography's] position [on marriage] and asks this Court to compel [Elane Photography] to [tell a story through photography] that advances its contrary view. This is, in every sense of the term, viewpoint discrimination that violates the First Amendment."
Even though the government has now dropped its caseagainst the tech giant, the point is the same. Apple shamelessly opposes small business owners' right not to engage in compelled speech while simultaneously using its vast power and resources to pay some of the country's top attorneys to invoke the very same right in its fight against the FBI. Apple may say that this is like comparing apples and oranges. But it's not. It's just apples.