Court Should Strike Down Compelled Speech In Website Design Case [Cato]

By Walter Olson

The Supreme Court will hear oral argument today in one of its biggest First Amendment cases in years, 303 Creative LLC v. Elenis. It is the latest – and should be among the easiest to resolve – of the many cases in which vendors have asserted First Amendment rights not to assist in same-​sex weddings, notwithstanding state and local anti-​discrimination law. Cato has filed on behalf of the small business owners’ rights in many of these cases including Masterpiece Cakeshop and Arlene’s Flowers, as well as at earlier stages of this one. (Cato also filed in favor of the freedom to marry in cases such as Windsor and Obergefell, there being no contradiction between the two stands. Let freedom ring for all.)

As my colleague David Boaz summarizes today’s controversy at The Hill:

Lorie Smith… owns a graphic design firm in Colorado and wants to expand her business to include wedding websites.….As her brief to the Court says, “Smith will decline any request—no matter who makes it—to create content that contradicts the truths of the Bible.”

Smith’s faith is not mine. But like Voltaire, I fully defend her right to express her own ideas, and to refuse to express ideas she rejects. …

[The] court ruled in the 1977 “Live Free or Die” license‐​plate case out of New Hampshire that forcing people to speak is just as unconstitutional as preventing or censoring speech….

The Supreme Court has noted the First Amendment “includes both the right to speak freely and the right to refrain from speaking at all” …the justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind, which the government violates whenever it tells a person what she must or must not say.”

On that basis, courts have found that abstract art, tattooing, stained glass windows, church architecture, nude dancing, and St. Patrick’s Day parades are protected by the First Amendment. Surely web design deserves equal protection.

In earlier cases, reasonable observers often disagreed as to whether such services as cake design and flower arrangement were imbued with enough expressive value to count as speech. But the Tenth Circuit in its decision acknowledged that Smith’s website design services do count as speech. Then it ruled against her anyway on the reasoning that even under strict scrutiny, the relevant legal standard, the loss of her right to stay silent was supposedly outweighed by Colorado’s interest in guaranteeing every consumer access to the services of every web designer. In agreeing to review the case, the Supreme Court indicated that it would squarely face the speech issue; it turned down the chance to review Smith’s possible religious liberty claims.

At the Masterpiece Cakeshop oral argument five years ago, as I’ve written, all four of the (then) liberal justices gave indications that even though they might not draw the line on speech at cake design, they would draw it somewhere.

Justice Ruth Bader Ginsburg, for example, suggested that one logical place to search for a line would be when cakes had words on them. Several Justices on both sides proposed that cakes bearing particular symbols, such as a cross or rainbow, might convey a message. Even Sotomayor jumped in at one point to suggest that Colorado was going too far with its aggressive legal stance, under which it might sometimes compel a baker to inscribe a particular Bible verse demanded by a customer. …

In short, the Justices yesterday were not going for a knockout in the culture wars; they were intelligently disputing the dimensions of a fairly narrow strip of legal territory [regarding what should count as speech]. Despite what you heard on social media, neither side was trying to gut discrimination laws on the one side, or require rainbow loyalty oaths on the other. 

Since Masterpiece, the Court has been joined by three new Justices, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson. While chances are good that a majority will take a strong view of Smith’s speech rights, it is possible that some justices might prefer to break off in one way or another, as by ruling in her favor on narrower grounds. For example, they might propose sending the case back to the Tenth Circuit after rejecting that court’s bizarre analysis under which every creative business counts as a “monopoly” subject to compulsion because its output will inevitably differ from that of its competitors. Justices might also seek an off-ramp on the question of ripeness: Smith apparently hasn’t actually started her wedding service business yet, and a live case or controversy might arise only when an actual customer appears to whom she refuses service. (Or not.)

If the full Court does squarely reach Smith’s claim on the merits, it seems almost inconceivable that it will not rule in her favor, and uphold her rights against compelled speech. That would be a welcome and overdue victory for the liberty of all Americans.

Reprinted with permission.