This coming week the Supreme Court will hear 303 Creative LLC v. Elenis, a case that offers the court an opportunity to reconcile the growing tension between the First Amendment’s free speech guarantees and public-accommodation laws.
Public-accommodation laws have generally coexisted peacefully with the First Amendment. Yet in a disturbing new trend, governments across the country claim the power to compel speech under the aegis of such laws. The crux of the question presented in 303 Creative is whether artists — indeed all Americans — remain free to say only what they believe.
The plaintiff in 303 Creative, Lorie Smith, is a website designer who combines the traditional elements of art with modern technology. Every word she writes, every graphic she designs, and every custom website she crafts is original and expresses a unique message. The parties all agree that Smith’s websites are speech. Smith and Colorado further agree that she serves everyone and that she creates custom websites for people from all walks of life, including her LGBT clients.
These concessions decide this case. Applying Colorado’s law to change Smith’s speech violates the First Amendment. States can and do protect their citizens from being denied access to essential goods and services based on who they are. No one is arguing — and the Alliance Defending Freedom would oppose any argument — to allow conduct that rejects an entire class of people. But when the government targets speech, rather than conduct, the First Amendment’s protections apply.
As the Supreme Court unanimously said in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.”
Under the compelled-speech doctrine, the government may no more force individuals to affirm certain beliefs than it may require them to convey the government’s own message. When speech is compelled, individuals are forced into betraying their own beliefs. Per Justice Robert Jackson’s oft-cited opinion in West Virginia v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Yet in 303 Creative, Colorado claims the authority to compel Smith to confess by word her faith in Colorado’s mandated orthodoxy instead of her own. Colorado requires Smith to create custom same-sex wedding websites — speech — even though doing so violates her deeply held beliefs. Regardless of your beliefs about marriage (or any other topic), 303 Creative raises deeply significant questions about whether the government may force people to speak and promote messages with which they disagree.
The ability to choose one’s words is central to self-autonomy and to self-government. To silence certain disfavored viewpoints would impoverish the American conversation and hinder the search for truth contemplated by the First Amendment. Indeed, the Framers of our Constitution believed in the power of “free and fearless reasoning.” Under the free speech clause, the answer to erroneous speech is more speech, not less.
In a remarkable decision, the 10th Circuit acknowledged that Colorado’s public-accommodation law compels Smith to speak in violation of her sincere beliefs. Based on a novel theory, the lower court found that Colorado could force her to speak because she is the only source of the wedding websites she designs. Under the 10th Circuit’s artists-are-monopolists theory, the more unique an artist’s speech, the greater the government’s interest in compelling it. The lower court’s ruling is so unprecedented that Colorado does not even defend its reasoning.
Still, Colorado’s arguments do not fare any better. Colorado asserts that any burden on Smith’s speech is permissible because its public-accommodation law regulates sales. This argument relegates business owners who create speech to second-class First Amendment status. It would require a Democratic speech writer to draft speeches promoting the Republican platform, a mom with an Etsy side-hustle who creates religious art to create art supporting atheism, and a pro-abortion photographer to promote pro-life rallies. Simply put, the government shouldn’t deny free-speech rights to Americans who create art for a living.
In Hurley, the Supreme Court held that Massachusetts could not apply its public-accommodation statute to alter the message of the Boston parade. The court found that such a use of governmental power would violate “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” That same principle protects Smith.
Smith’s request is a modest one. A win for her would not take us back to ugly times in our nation’s history, as Colorado and opponents of free speech disingenuously suggest. Thousands of business transactions occur every day and do not involve expression at all — they would be fully covered by state public-accommodation laws. Further, the compelled-speech doctrine does not protect the rare business owner who refuses to sell a pre-made product (in which case, the government is not affecting speech because the creation has already occurred) or the rare artist who declines to create a work based on who a person is.
Indeed, the public-accommodation laws of 20 states already protect speech, showing that those laws and the First Amendment can coexist peacefully. A win for Smith would be a win for all Americans to ensure none of us become government mouthpieces.
It is not an overstatement to call compelled speech for government-favored positions — as did Judge Tymkovich — “an existential threat to our most sacred freedoms.” Regardless of one’s views on marriage, we should be intensely troubled by Colorado’s argument that the government may force individuals to speak contrary to their most deeply held beliefs.