A First Amendment for Everyone
Over the past century, the First Amendment’s protection of “free speech” has been interpreted to protect the wrongful – white supremacists and homophobic— as well as the admirable — the black civil rights movement and the gay rights cause. This jurisprudence reflects an American commitment to its own brand of classical liberalism in matters of conscience and expression.
On Mondaythis commitment will be tested by another important commitment — equality before the law — when the Supreme Court hears the arguments in 303 Creative LLC v. Elenis. Lorie Smith, a graphic designer who holds traditional religious views on marriage, wants to create custom websites just for weddings between a man and a woman.
But Colorado’s public housing law (like those in 28 other states) prohibits businesses from discriminating on the basis of sexual orientation in the sale of goods and services to the general public. While Smith says she’s happy to serve gay customers in other ways, she doesn’t want to send a message of approval of same-sex marriages.
The Nation’s tradition of pluralism under the First Amendment is best understood to prohibit Colorado from forcing Lorie Smith to create a speech celebrating same-sex marriages. Wedding website designers have a limited First Amendment right to refuse to sell such expressive services. Significantly and poignantly, the same tradition of expressive pluralism has allowed same-sex marriage advocates to transform public attitudes towards same-sex marriage himself. For the good of all, this tradition must be preserved in 303 Creative.
Faced with the credible threat of costly and time-consuming investigations by the state Civil Rights Commission, Smith preemptively sued Colorado in what is known as a “pre-enforcement” action, alleging a violation of its rights to freedom of expression. She lost in the first instance. (Disclosure: Along with Eugene and others, I filed a amicus brief supporting Smith.)
The case boils down to two main issues. First, is creating custom wedding websites for sale in the public market the “talk” of the designer? Second, if this is a speech, does the creator have a First Amendment right to refuse such expressive services for same-sex marriages despite a state law requiring her to do it ?
The answer to the first question is surprisingly simple. Freedom of expression involves more than speaking. This includes writing, picketing, dancing and flag saluting. Government in general cannot force a person to speak Against his will. And freedom of expression must also include the freedom not to create speech.
In the commercial market, as elsewhere, courts must draw lines between expression and non-expression. Speech protection should only be extended where the good or service involves an inherently expressive medium (for example, the speaker’s own original words or symbols) or a medium that has historically or traditionally been recognized by law as expressive (for example, parades).
Most commercial services and goods cannot possibly be considered expressive. Hoteliers, limousine drivers and tailors don’t “talk” when offering their professional services, even though they attach great personal significance to these activities.
Even not all web design services are expressive. If Lorie Smith was simply hosting customer-generated content on her online platform, or simply allowing customers to select ready-to-use design templates involving certain colors and fonts, her offerings in the website marketplace marriage would primarily be his clients’ expression – not his own. Similarly, if Smith only offered an online platform to regurgitate prosaic details, like the time and location of the ceremony, such “speech” would not earn First Amendment protection. The Supreme Court held that simply sending out scheduling emails or announcing meeting locations is not constitutionally protected expression.
Details matter. Borderline multi-billion dollar cases wedding-industrial complex are certainly imaginable. For example, elaborate personalized wedding cakes adorned with specific symbols and pastry gun writing are perhaps a close call. The Supreme Court faced a similar wedding cake case in 2018 in Masterpiece Cakeshop vs. Colorado Civil Rights Comm’n, but skirted the issue of free speech by holding that the baker had been unconstitutionally targeted for unfavorable treatment because of his religious views. (Since Masterpiece pastry, Justices Kavanugh and Barrett were added to the Court. Their views on the application of free speech principles to public accommodation laws in the marketplace are unknown.)
But Smith’s case is not on the edge of speech. She actively offers to create each individual website. Even the Colorado Civil Rights Commission has admitted that Smith’s graphic and website designs are expressive in nature, as they contain images, words, symbols, and other modes of expression that are used to communicate a special celebratory message. The appeals court, although ultimately denying Smith’s constitutional claim, agreed that his bespoke wedding website designs were “pure talk”.
Compelling Smith to promote the message that, in essence, same-sex marriages are genuine marriages and as deserving of celebration and support as heterosexual marriages is as much verbal compulsion as compelling him by law to proclaim “White Lives Matter” or “Jesus saves.”
If Smith’s conceptions are expressive, the question remains whether the state can nevertheless justify imposing its discourse on clients wishing to promote same-sex marriages. In limited circumstances, the Supreme Court has ruled that even fully shielded speech can be regulated whether the government can prove that it has an overwhelming justification for regulation and whether such regulation impinges on speech in the most limited way.
The state’s goal is undoubtedly compelling: to promote equality in the daily lives of gay Americans. In Masterpiece pastryThe Supreme Court warned that First Amendment objections by corporations must be limited lest they become broad licenses to discriminate. Disputes should be resolved as far as possible “without subjecting homosexuals to indignities when seeking goods and services in a free market”.
Nevertheless, the Court confirmed the right of organizers of Boston’s annual Irish Parade to exclude a contingent who wanted to march behind a banner identifying themselves as gay. And that confirmed Boy Scouts’ right to expel an openly gay Scoutmaster. Both cases involved state laws on public housing. As in Smith’s case, both involved the forced inclusion of messages affirming homosexuality that objectors did not wish to convey. And both were probably insulting the excluded people.
The constitutional answer remains somewhat uncertain in the commercial market. Lower courts ruled in favor of marriage calligraphers and videographersbut against a wedding photographer and one floristwho opposed the provision of goods for same-sex marriages.
Some of them may be tough cases on the line between expression and non-expression, but in principle there is no reason why market-enforced public accommodation laws should enjoy immunity. adamant against considering the First Amendment. After all, it does not matter whether the word is produced for profit to be sold to others or on principle simply to persuade them. Books, films and newspapers are sold commercially but are nonetheless protected. If creating custom wedding websites is talk (and almost everyone agrees), it doesn’t matter that the designer intends to sell the designs.
Nor has Colorado demonstrated that it promotes equality in the least intrusive way possible, as it might when a vendor has a monopoly on a product or service. The appeals court concluded that the speaking compulsion was justified because Smith had a practical monopoly on its unique expressive services: website designs could not be offered of exactly the same quality by any of the many other designers of talented graphic and wedding websites readily available online for same sex couples. If the Supreme Court says nothing else about the case, it should outright reject the bizarre finding that an artist’s expressive skills must be provided because the artist has a monopoly on their own expression. Neither Colorado nor any of its supporting amici defended this flawed theory.
But the Supreme Court should do more. It should clarify that the First Amendment applies to expressive goods and services sold in the public square, offer guidance on what does and does not count as “expressive,” and refer the case to lower courts with instructions that Colorado cannot enforce its public housing law against Smith’s proposed phrase unless the state meets the burden of satisfying genuinely strict judicial scrutiny – not the watered down version of the law. court of appeal.
Many will ask, what about racial discrimination? After all, even the the most venomous racist speech is protected. But the distinctive characteristics of racist denials of service (including regional prevalence) and the particular horrors of racism (including slavery and Jim Crow) have justified the total eradication of these practices from the marketplace. They have no analog in American history. U.S. anti-discrimination law has long treated such discriminatory practices as sui generistolerating relatively few exceptions.
Freedom of speech enabled gay America to thrive. Long before the right to marry was recognized, at a time when even their private sexual acts were criminalized, gays and lesbians used the space provided by the First Amendment to organize politically and persuade Americans to support their freedom and their equality. If tolerance means anything, it means marriage traditionalists like Smith can espouse their views (and refuse to espouse opposing views) in the public market.