Next week, the Supreme Court will hear arguments on whether a state may, in applying anti-discrimination law, compel the creation of an expressive product. The case of 303 Creative LLC v. Elenis has the potential to either inflame or quell our ongoing culture wars.
Lorie Smith owns the graphic design firm 303 Creative and wants to expand into wedding work. Although Smith is perfectly willing to work for LGBTQ customers, her religious convictions preclude her from creating graphics for same-sex marriages. But the Colorado Anti-Discrimination Act requires her to create custom websites celebrating the marriages of same-sex couples if she does so for opposite-sex couples.
This resembles the Masterpiece Cakeshop case from 2018, where a baker refused to bake a cake celebrating a same-sex wedding, in alleged contravention of the same Colorado anti-discrimination law. Was cake baker Jack Phillips a free speech martyr or a half-baked bigot? The Supreme Court ultimately ruled—in Justice Anthony Kennedy's final opinion—that the Colorado Civil Rights Commission expressed hostility to Phillips's Christian beliefs and thus violated his right to free exercise of religion.
In so ruling, the Court avoided the broader intersection of anti-discrimination laws and freedom of speech. It also didn't rule on whether cake-baking is itself an expressive activity protected by the First Amendment. But in 303 Creative, there's no question that the commercial activity at issue constitutes First Amendment-protected speech.
Not waiting to be prosecuted, Smith sought a ruling in federal court that Colorado could not enforce its anti-discrimination law against her. The 10th Circuit Court of Appeals agreed that Smith's "creation of wedding websites is pure speech," and that Colorado law compels Smith to create speech that she would otherwise eschew. But the law survives constitutional scrutiny, the court concluded, because it is narrowly tailored to the state's interest in ensuring that LGBTQ customers have access to "custom and unique" products. The court characterized Smith as having "monopolistic" control over her specific designs. Refusing to provide her services would thus result in some Coloradans being denied access to an entire "market."
That's a bizarre ruling, which effectively says that every commercial enterprise is a monopoly unto itself—and that any artist or other expressive professional can be compelled to speak because that speech is, in every instance, unique. In following this type of litigation for many years now, I'd never before encountered that specific argument.
While the Supreme Court is unlikely to uphold the 10th Circuit's analysis, will it rule four-square against speech compulsions or again find some narrower path to avoid resolving the purported conflict between free speech and gay rights? It could perhaps vacate the lower court's self-monopoly ruling and remand for a more conventional First Amendment analysis. Or it could adopt the more traditional monopoly analysis that was the basis for public accommodations rules at common law: for example, that the only inn for miles around had to provide food and shelter to travelers, but that competing merchants in a city owed no such obligation.
Fundamentally, 303 Creative is about protecting the constitutional right to free expression while allowing the government to generally ensure equal access to commercial goods and services. Although "gay couples cannot be treated as social outcasts or as inferior in dignity and worth," as the Court observed in Masterpiece Cakeshop, the First Amendment's protection of freedom of speech must also include the freedom not to speak.
A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican Party rallies, even if he will play at other political events—and even if the jurisdiction statutorily bans discrimination based on political affiliation. Likewise, a photographer or a wedding singer should not be punished for refusing to take photographs celebrating a same-sex wedding, or for refusing to sing at such a wedding, regardless of what any statute says.
Indeed, the Court has generally recognized that the First Amendment protects the right to speak, or to refrain from speaking, even when the government cites its compelling interest in forbidding discrimination. In the 1995 Hurley case, for example, the Court held that organizers of a St. Patrick's Day Parade could not be required to allow an Irish gay, lesbian, and bisexual contingent to march behind a banner merely proclaiming their presence, despite a state law protecting people from sexual orientation discrimination.
Of course, the right to refuse to speak doesn't extend to refusals to do things that aren't a form of speech—so 303 Creative won't affect limousine drivers, hotel operators, or caterers. (They may independently implicate the right to religious free exercise, but the Court in 303 Creative explicitly declined to review such claims, which face a higher legal hurdle anyway.) As the Court put it in United States v. O'Brien (1968), our jurisprudence rejects "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."
Fortunately, 303 Creative doesn't call on the Court to define the line between speech and conduct with precision, as there's no question that the underlying conduct here involves compelled speech. Because it's so easy to appreciate how the case implicates speech rights—as even the 10th Circuit did—the Court has a prime opportunity to reiterate the basic holding of cases like Hurley and Wooley v. Maynard (1977), where it held that a motorist could decline to carry New Hampshire's "Live Free or Die" license plate motto: the First Amendment's protections for the "individual freedom of mind" mean that the government may not require people to create and distribute speech, and cannot force them to change their message because they have decided to speak.
In Masterpiece Cakeshop, the Court expressly recognized the "authority of a state and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services." 303 Creative allows the Court to add that, despite their importance, state laws prohibiting discrimination in public accommodations are necessarily subject to constitutional limits on governmental power. It also provides the opportunity to reject the 10th Circuit's corrosive analysis, which defers to the state's regulatory choice in any case involving expressive products in the commercial marketplace.
The First Amendment has historically protected the rights of Americans to organize politically and to advocate once-unpopular causes. Just as drivers' "freedom of mind" in Wooley permitted them to refuse to display speech they disapprove of, creators' freedom of mind permits them to refuse to create speech they disapprove of, including that related to marriage.
The Supreme Court should reaffirm all Americans' right to choose what to say.
This piece originally appeared on Newsweek
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