First Amendment

Judges Say Web Design Is 'Pure Speech' and That the State Can Compel It Anyway

Trump's critics fault him for fomenting division. The left's efforts to drive people of faith from the public square are making the problem worse.

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The great Masterpiece Cakeshop debates of 2015–2018 could sometimes sound like the refrain from "Anything You Can Do (I Can Do Better)," with people on the baker's side insisting that creating and decorating a custom wedding cake is an expressive activity and thus protected conduct under the First Amendment, and people on the complainants' side insisting it's mere commercial activity and so proprietors cannot pick and choose which jobs to accept based on their moral convictions ("yes it is," "no it's not," "yes it is," "no it's not"). But yesterday, in a similar case, the U.S. Court of Appeals for the 10th Circuit chucked that criterion out the window and decreed that speech itself can be compelled by the state in the name of preventing discrimination against gays and lesbians.

In 303 Creative LLC v. Elenis, a divided three-judge panel found that designing a custom wedding website is "pure speech." Under Colorado's anti-discrimination law, the court noted, "Appellants are forced to create websites—and thus, speech—that they would otherwise refuse." This would seem to point to a win for the web designers who do not wish to use their creative skills to "celebrate and promote the couple's wedding and unique love story." But according to Judge Mary Beck Briscoe and Judge Michael Murphy, that fact is less important than the "compelling interest" the state of Colorado has in "protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace." 

The wildest thing about the decision is that it says giving a conscience-based exemption to a web design firm would "necessarily relegate LGBT consumers to an inferior market because Appellants' unique services are, by definition, unavailable elsewhere." The fact that "LGBT consumers may be able to obtain wedding-website design services from other businesses" is irrelevant. "The product at issue is not merely 'custom-made wedding websites,' but rather 'custom-made wedding websites of the same quality and nature as those made by Appellants.' In that market, only Appellants exist."

As Ed Whelan pointed out at National Review, "it is difficult to imagine a ruling more hostile to free speech," since under this standard, every commercial artist would be classified as a monopolist (by definition, no one else can compete in his or her marketplace of one) subject to content regulation. It's as if the same expressive qualities that trigger the First Amendment are also being used to moot the First Amendment.

This decision is harrowing and worth objecting to on the merits. It also strikes me as exactly the kind of thing the U.S. Supreme Court might unanimously overturn. (UCLA law professor Eugene Volokh, who disagreed with me and many other libertarians about Masterpiece Cakeshop on the grounds that cake decoration doesn't qualify as speech, notes in a blog post that he co-filed an amicus brief on the side of the web designers in this case.) But even if the 10th Circuit's ruling doesn't stand—and I very much hope it won't—there is reason to be concerned about the way that cases like this can increase political radicalization and animus.

In a January survey of people who supported then–President Donald Trump in 2020, 89 percent said that "Christianity is under attack in America today." Asked how important it was for a politician to "support laws protecting religious liberty," seven in 10 gave it a five out of five; no other attribute was rated so highly by so many.

This is strong evidence that support for Trump was a reaction against something specific—namely, a sense that "people like them" are facing unjust assaults that require an extreme response on their part. The Supreme Court's ruling in favor of the baker in Masterpiece should have been a vindication of their rights, yet the situation* involving 303 Creative is, if anything, even more brazen.

The 45th president's critics have rightly faulted him for fomenting us vs. them division. The left's efforts to drive people of faith from the public square are just as morally deficient, and to the extent they push the right in a more authoritarian direction, they're only making our toxic politics worse.

*CORRECTION: Unlike Masterpiece Cakeshop, which has been repeatedly targeted under Colorado's anti-discrimination law, 303 Creative is preemptively challenging the law's constitutionality. The court found that the company has "a credible fear that Colorado will enforce [the state's Anti-Discrimination Act] against them."

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