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A First Amendment for Everyone

by Atlanta Business Journal

Over the past century the First Amendment’s protection of “the freedom of speech” has been interpreted to shield the reprehensible — White Supremacists and homophobes—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 Monday, that commitment will be tested against another important one — equality under law — when the Supreme Court hears oral argument in 303 Creative LLC v. Elenis. Lorie Smith, a graphic designer who holds traditional religious views about marriage, wants to create custom websites only for weddings uniting one man and one woman.

But Colorado’s public-accommodations 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 is happy to serve gay customers in other ways, she does not 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 forbid Colorado to make Lorie Smith create speech celebrating same-sex marriages. Graphic designers of wedding websites have a limited First Amendment right to refuse to sell such expressive services. Importantly, and poignantly, the very same tradition of expressive pluralism allowed gay-marriage advocates to transform public attitudes about same-sex marriage itself. For the sake of all, that tradition should be preserved in 303 Creative.

Facing the credible threat of expensive and time-consuming investigations by the state civil rights commission, Smith preemptively sued Colorado in what is known as a “pre-enforcement” action, claiming a violation of her free-speech rights. She lost in the lower courts. (Disclosure: Along with Eugene and others, I filed an amicus brief supporting Smith.)

The case comes down to two main questions.  First, is the creation of custom wedding websites for sale in the public marketplace the designer’s “speech”?  Second, if it is speech, does the designer have a First Amendment right to refuse such expressive services for same-sex weddings despite a state law compelling her to do so?

I.

The answer to the first question is surprisingly straightforward. The freedom of speech involves more than talking. It includes writing, picketing, dancing, and saluting flags. Government generally may not compel a person to speak against her will. And free speech must also include the freedom not to create speech.

In the commercial marketplace, as elsewhere, courts must draw lines between expression and non-expression. Speech protection should be extended only where the good or service involves an inherently expressive medium (e.g., the speaker’s own original words or symbols) or a medium that has historically or traditionally been recognized in the law as expressive (e.g., parades).

Most business services and goods cannot plausibly be regarded as expressive. Hotel owners, limousine drivers, and tailors are not “speaking” when offering their professional services, even if they imbue these activities with great personal meaning. 

Not even all website design services are expressive. If Lorie Smith were just hosting customer-generated content on her online platform, or simply allowing customers to select off-the-rack design templates involving certain colors and fonts, her offerings in the wedding-website marketplace would be mainly her customers’ expression — not her own. Similarly, if Smith were only offering an online platform to regurgitate prosaic details, like the time and place of the ceremony, such “speech” would not earn First Amendment protection. The Supreme Court has held that merely sending scheduling emails or announcing meeting locations is not constitutionally shielded expression.

The details matter. Borderline cases involving the muti-billion dollar wedding-industrial complex are certainly imaginable. For example, elaborate custom wedding cakes adorned with specific symbols and pastry-gun writing are perhaps a close call. The Supreme Court confronted a similar wedding cake case in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, but sidestepped the free-speech issue by holding that the baker had been unconstitutionally targeted for unfavorable treatment because of his religious views. (Since Masterpiece Cakeshop, Justices Kavanugh and Barrett have been added to the Court. Their views on the application of free-speech principles to public accommodations laws in the marketplace are unknown.)

But Smith’s case is not on the borderline of speech. She proposes actively to create each individual website. Even the Colorado Civil Rights Commission conceded 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 particular message of celebration. The appeals court, though it ultimately rejected Smith’s constitutional claim, agreed that her bespoke wedding website designs are “pure speech.”

Compelling Smith to promote the message that, in essence, same-sex marriages are authentic marriages and are as worthy of celebration and support as opposite-sex marriages is as much a speech compulsion as requiring her by law to proclaim “White Lives Matter” or “Jesus Saves.”

II.

If Smith’s designs are expressive, the question remains whether the state may nevertheless justify compelling her speech for customers wishing to promote same-sex weddings. In limited circumstances the Supreme Court has held that even fully protected speech may be regulated if the government can prove it has an overwhelming justification for the regulation and if such regulation intrudes on speech in a most limited way.

The state’s objective is undoubtedly compelling: promoting equality in daily life for gay Americans. In Masterpiece Cakeshop, the Supreme Court cautioned that First Amendment objections by businesses must be limited lest they become broad licenses to discriminate. Conflicts should be resolved where possible “without subjecting gay persons to indignities when they seek goods and service in an open market.”

Nevertheless, the Court upheld the right of Boston’s annual Irish parade organizers to exclude a contingent that wanted to march behind a banner identifying themselves as gay. And it upheld the right of the Boy Scouts to expel an openly gay scoutmaster. Both cases involved state public accommodations laws. As in Smith’s case, both involved compelled inclusion of gay-affirming messages the objectors did not wish to convey. And both doubtless insulted the persons excluded.

The constitutional answer remains somewhat unsettled in the commercial marketplace. Lower courts have ruled in favor of wedding calligraphers and videographers, but against a wedding photographer and a florist, who objected to providing goods for same-sex weddings.

Some of these may be difficult cases on the line between expression and non-expression, but in principle there’s no reason why public-accommodations laws applied to the marketplace should enjoy a categorical immunity from First Amendment review. After all, it makes no difference whether speech is produced for profit to be sold to others or for principle simply to persuade them. Books, films, and newspapers are commercially sold but are no less protected. If creating custom wedding websites is speech (and almost everyone agrees it is) it does not matter whether the designer intends to sell the creations.

Colorado has also not demonstrated it is promoting equality in the least speech-intrusive way, as it might be able to do when a vendor has a monopoly on a product or service. The appeals court concluded that the speech compulsion was justified because Smith had a practical monopoly on her unique expressive services: the website designs could not be offered in exactly the same quality by one of the other numerous talented graphic and wedding website designers available easily online to same-sex couples. If the Supreme Court says nothing else about the case, it should squarely repudiate the bizarre conclusion that an artist’s expressive skills must be provided because the artist has a monopoly on her own expression.  Neither Colorado nor any of its supporting amici have defended that misbegotten theory.

III.

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 as to what does and does not count as “expressive,” and send the case back to the lower courts with instructions that Colorado cannot enforce its public-accommodations law against Smith’s proposed expression unless the state meets the burden of satisfying genuinely strict judicial scrutiny — not the watered-down version of the appeals court.

Many will ask, what about racial discrimination? After all, even the most venomous racist speech is protected.  But the distinctive features of racist denials of service (including region-wide prevalence) and the special horrors of racism (including slavery and Jim Crow) justified wholesale eradication of these practices from the marketplace.  They have no analogue in American history. American anti-discrimination law has long treated such discriminatory practices as sui generis, tolerating relatively few exceptions.

Free speech allowed gay America to flourish. Long before the right to marry was recognized, in a time when even their private sexual acts were criminalized, gay men and lesbians used the space provided by the First Amendment to organize politically and to persuade Americans to support their liberty and equality. If tolerance means anything, it means that marriage traditionalists like Smith may espouse their views (and refuse to espouse contrary views) in the public marketplace.

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