The Volokh Conspiracy
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S. Ct. Holds That Speech Creators (e.g., Web Designers) Can't Be Required to Create Content They Object to,
including when the requirement is imposed by antidiscrimination laws, for instance when such laws require web site designers who create opposite-sex wedding sites create same-sex wedding sites.
The logic of today's 303 Creative LLC v. Elenis should apply, I think, to photographers, videographers, calligraphers, freelance writers, and the like (as well as performers such as wedding singers). It wouldn't apply to businesses that provide nonspeech goods and services, such as wedding venues, limousine drivers, caterers, and the like. It is thus a narrow case, authorizing First Amendment defenses to only a limited set of applications of antidiscrimination law, when speech creators want to choose the particular content of speech that they seek to create.
At the same time, it provides strong protection for speech creators, whether their motivations are religious or not: The decision rests on the Free Speech Clause and not on the Free Exercise Clause. And it provides protection regardless of whether the antidiscrimination law bans discrimination based on sexual orientation, religion, race, political belief, and so on. The Court reasoned that, if the Free Speech Clause here was rejected:
The government could require "an unwilling Muslim movie director to make a film with a Zionist message," or "an atheist muralist to accept a commission celebrating Evangelical zeal," so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.
The Court's decision thus entitles these hypothetical freelance movie director, muralist, and website designer to refuse to create such works.
The opinion doesn't resolve what would happen to products or services that aren't traditionally speech but that may be seen as symbolic, such as flower arrangements and wedding cakes. (Dale Carpenter's and my view, which we've expressed in a past amicus brief, is that decisions not to create wedding cakes, at least ones without writing or other visual ideological messages, are not protected by the First Amendment, while decisions to create photographs, web sites, and the like are. We analogize in that brief to speech restrictions, where First Amendment law must decides what's a restriction on speech and what on constitutionally unprotected conduct: A town, for instance, can't ban live performances, newspapers, or photographers, or limit their number; but the First Amendment doesn't stop it from banning or limiting hotels, caterers, limousine drivers, bakers, florists, and the like. Dale and I also filed an amicus brief, together with others, on the web site designer's side in this case.)
Here are excerpts from Justice Gorsuch's majority opinion:
[A.] Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause ….
[B.] The framers designed the Free Speech Clause … to protect the "freedom to think as you will and to speak as you think." They did so because they saw the freedom of speech "both as an end and as a means." An end because the freedom to think and speak is among our inalienable human rights. A means because the freedom of thought and speech is "indispensable to the discovery and spread of political truth." ..
[C.] [T]he wedding websites Ms. Smith [the owner of 303 Creative LLC] seeks to create qualify as "pure speech" under this Court's precedents…. [The parties] have stipulated that Ms. Smith's websites promise to contain "images, words, symbols, and other modes of expression." They have stipulated that every website will be her "original, customized" creation. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to "celebrate and promote the couple's wedding and unique love story" and to "celebrat[e] and promot[e]" what Ms. Smith understands to be a true marriage.
A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a "voice that resonates farther than it could from any soapbox." All manner of speech—from "pictures, films, paintings, drawings, and engravings," to "oral utterance and the printed word"—qualify for the First Amendment's protections; no less can hold true when it comes to speech like Ms. Smith's conveyed over the Internet….
[T]he wedding websites Ms. Smith seeks to create involve her speech…. Ms. Smith intends to "ve[t]" each prospective project to determine whether it is one she is willing to endorse. She will consult with clients to discuss "their unique stories as source material." And she will produce a final story for each couple using her own words and her own "original artwork."
Of course, Ms. Smith's speech may combine with the couple's in the final product. But for purposes of the First Amendment that changes nothing. An individual "does not forfeit constitutional protection simply by combining multifarious voices" in a single communication….
{[The State argues that t]o comply with Colorado law, … all Ms. Smith must do is repurpose websites she will create to celebrate marriages she does endorse for marriages she does not. She sells a product to some, the State reasons, so she must sell the same product to all…. Colorado says[] this case involves only the sale of an ordinary commercial product and any burden on Ms. Smith's speech is purely "incidental." On the State's telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny….
[But] the State has stipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create "customized and tailored" speech for each couple. The State has stipulated that "[e]ach website 303 Creative designs and creates is an original, customized creation for each client." The State has stipulated, too, that Ms. Smith's wedding websites "will be expressive in nature, using text, graphics, and in some cases videos to celebrate and promote the couple's wedding and unique love story."}
[D.] Colorado seeks to compel speech Ms. Smith does not wish to provide…. [I]f Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to "forc[e her] to create custom websites" celebrating other marriages she does not. Colorado seeks to compel this speech in order to "excis[e] certain ideas or viewpoints from the public dialogue." Indeed, the [court below] recognized that the coercive "[e]liminati[on]" of dissenting "ideas" about marriage constitutes Colorado's "very purpose" in seeking to apply its law to Ms. Smith….
Colorado [may not] compel speech from Ms. Smith consistent with the Constitution …. In Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc. (1995), the Court found that Massachusetts impermissibly compelled speech in violation of the First Amendment when it sought to force parade organizers to accept participants who would "affec[t] the[ir] message." In Boy Scouts of Am. Dale (2000), the Court held that New Jersey intruded on the Boy Scouts' First Amendment rights when it tried to require the group to "propound a point of view contrary to its beliefs" by directing its membership choices. And in W. Va. Bd. of Ed. v. Barnette (1943), this Court found impermissible coercion when West Virginia required schoolchildren to recite a pledge that contravened their convictions on threat of punishment or expulsion.
Here, Colorado seeks to put Ms. Smith to a similar choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in "remedial … training," filing periodic compliance reports as officials deem necessary, and paying monetary fines. Under our precedents, that "is enough," more than enough, to represent an impermissible abridgment of the First Amendment's right to speak freely.
Consider what a contrary approach would mean. Under Colorado's logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer's statutorily protected trait. Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require "an unwilling Muslim movie director to make a film with a Zionist message," or "an atheist muralist to accept a commission celebrating Evangelical zeal," so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. {[The dissent] asserts that CADA does not apply to "[m]any filmmakers, visual artists, and writers" because they do not "hold out" their services to the public. But … Colorado's law today applies to "any place of business engaged in any sales to the public." And … many artists and writers accept commissions from the public.}
Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. As our precedents recognize, the First Amendment tolerates none of that.
[E.] In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a "compelling interest" in eliminating discrimination in places of public accommodation. This Court has recognized, too, that public accommodations laws "vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments." … States may "protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment." …
At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech. [Hurley; Dale.]…
[F.] Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith's services are "unique." In some sense, of course, her voice is unique; so is everyone's. But that hardly means a State may coopt an individual's voice for its own purposes. In Hurley, the veterans had an "enviable" outlet for speech; after all, their parade was a notable and singular event. In Dale, the Boy Scouts offered what some might consider a unique experience. But in both cases this Court held that the State could not use its public accommodations statute to deny speakers the right "to choose the content of [their] own message[s]." Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government's preferred messages….
[G.] Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is "the sole member-owner." But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world's great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers.
[H.] Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to compel. She refuses, the State insists, because she objects to the "protected characteristics" of certain customers. But … [the parties have stipulated] that Ms. Smith "will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites" do not violate her beliefs. That is a condition, the parties acknowledge, Ms. Smith applies to "all customers." Ms. Smith stresses, too, that she has not and will not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments. Nor, in any event, do the First Amendment's protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive. {While [the Free Speech Clause] does not protect status-based discrimination unrelated to expression, generally it does protect a speaker's right to control her own message—even when we may disapprove of the speaker's motive or the message itself.}…
[I.] Colorado suggests that this Court's decision in Rumsfeld v. FAIR (2006) supports affirmance. In FAIR, a group of schools challenged a law requiring them, as a condition of accepting federal funds, to permit military recruiters space on campus on equal terms with other potential employers. The only expressive activity required of the law schools, the Court found, involved the posting of logistical notices along these lines: "'The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.'" And, the Court reasoned, compelled speech of this sort was "incidental" and a "far cry" from the speech at issue in our "leading First Amendment precedents [that] have established the principle that freedom of speech prohibits the government from telling people what they must say."
It is a far cry from this case too. To be sure, our cases have held that the government may sometimes "requir[e] the dissemination of purely factual and uncontroversial information," particularly in the context of "commercial advertising." But this case involves nothing like that. Here, Colorado does not seek to impose an incidental burden on speech. It seeks to force an individual to "utter what is not in [her] mind" about a question of political and religious significance. And that, FAIR reaffirmed, is something the First Amendment does not tolerate. No government, FAIR recognized, may affect a "speaker's message" by "forc[ing]" her to "accommodate" other views; no government may "'alter'" the "'expressive content'" of her message; and no government may "interfer[e] with" her "desired message." …
[J.] Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve "pure speech." {The dissent observes that public accommodations laws may sometimes touch on speech incidentally as they work to ensure ordinary, nonexpressive goods and services are sold on equal terms. But as Hurley observed, there is nothing "incidental" about an infringement on speech when a public accommodations law is applied "peculiar[ly]" to compel expressive activity…. [O]ur case law has not sustained every First Amendment objection to an antidiscrimination rule, as with a law firm that sought to exclude women from partnership. But … very different considerations come into play when a law is used to force individuals to toe the government's preferred line when speaking (or associating to express themselves) on matters of significance. Dale.} …
And from Justice Sotomayor's dissent, joined by Justices Kagan and Jackson:
[A.] A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner's religious belief that same-sex marriages are "false." The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause … shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong…. [T]he law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group….
The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. Such a law does not directly regulate petitioners' speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination….
This Court has long held that "the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." "Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading 'White Applicants Only' hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct." FAIR. This principle explains "why an ordinance against outdoor fires might forbid burning a flag and why antitrust laws can prohibit agreements in restraint of trade."
Consider United States v. O'Brien (1968). In that case, the Court upheld the application of a law against the destruction of draft cards to a defendant who had burned his draft card to protest the Vietnam War. The protester's conduct was indisputably expressive. Indeed, it was political expression, which lies at the heart of the First Amendment. Yet the O'Brien Court focused on whether the Government's interest in regulating the conduct was to burden expression. Because it was not, the regulation was subject to lesser constitutional scrutiny. The O'Brien standard is satisfied if a regulation is unrelated to the suppression of expression and "'promotes a substantial government interest that would be achieved less effectively absent the regulation.'" …
[Likewise, t]he law schools in FAIR claimed that the Solomon Amendment infringed the schools' First Amendment freedom of speech. The schools provided recruiting assistance in the form of emails, notices on bulletin boards, and flyers. As the Court acknowledged, those services "clearly involve speech." And the Solomon Amendment required "schools offering such services to other recruiters" to provide them equally "on behalf of the military," even if the school deeply objected to creating such speech. But that did not transform the equal provision of services into "compelled speech" of the kind barred by the First Amendment, because the school's speech was "only 'compelled' if, and to the extent, the school provides such speech for other recruiters." Thus, any speech compulsion was "plainly incidental to the Solomon Amendment's regulation of conduct." …
The same principle resolves this case…. [A] public accommodations law like the [Colorado law] does not "target speech or discriminate on the basis of its content." Rather, "the focal point of its prohibition" is "on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services." …
Crucially, the law "does not dictate the content of speech at all, which is only 'compelled' if, and to the extent," the company offers "such speech" to other customers. Colorado does not require the company to "speak [the State's] preferred message." Nor does it prohibit the company from speaking the company's preferred message. The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman. (Just as it could offer only t-shirts with such quotations.) The company could also refuse to include the words "Love is Love" if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers' protected characteristics. Any effect on the company's speech is therefore "incidental" to the State's content-neutral regulation of conduct.
Once these features of the law are understood, it becomes clear that petitioners' freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God's laws. Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks.)
Finally, and most importantly, even if the company offers its goods or services to the public, it remains free under state law to decide what messages to include or not to include…. All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples. See Runyon v. McCrary (1976) (distinguishing between schools' ability to express their bigoted view "that racial segregation is desirable" and the schools' proscribable "practice of excluding racial minorities").
Another example might help to illustrate the point. A professional photographer is generally free to choose her subjects. She can make a living taking photos of flowers or celebrities. The State does not regulate that choice.
If the photographer opens a portrait photography business to the public, however, the business may not deny to any person, because of race, sex, national origin, or other protected characteristic, the full and equal enjoyment of whatever services the business chooses to offer. That is so even though portrait photography services are customized and expressive.
If the business offers school photos, it may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable. If the business offers corporate headshots, it may not deny those services to women because the owner believes a woman's place is in the home. And if the business offers passport photos, it may not deny those services to Mexican Americans because the owner opposes immigration from Mexico.
The same is true for sexual-orientation discrimination. If a photographer opens a photo booth outside of city hall and offers to sell newlywed photos captioned with the words "Just Married," she may not refuse to sell that service to a newlywed gay or lesbian couple, even if she believes the couple is not, in fact, just married because in her view their marriage is "false." …
[B.] Because any burden on petitioners' speech is incidental to CADA's neutral regulation of commercial conduct, the regulation is subject to the standard set forth in O'Brien. That standard is easily satisfied here because the law's application "promotes a substantial government interest that would be achieved less effectively absent the regulation." … [B]y prohibiting only "acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages," the law "responds precisely to the substantive problem which legitimately concerns the State and abridges no more speech … than is necessary to accomplish that purpose." …
[C.] The majority attempts to distinguish this clear holding of FAIR by suggesting that the compelled speech in FAIR was "incidental" because it was "logistical" (e.g., "The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m."). This attempt fails twice over. First, the law schools in FAIR alleged that the Solomon Amendment required them to create and disseminate speech propagating the military's message, which they deeply objected to, and to include military speakers in onand off-campus forums (if the schools provided equally favorable services to other recruiters). The majority simply skips over the Court's key reasoning for why any speech compulsion was nevertheless "incidental" to the Amendment's regulation of conduct: It would occur only "if, and to the extent," the regulated entity provided "such speech" to others….
Second, the majority completely ignores the categorical nature of the exemption claimed by petitioners. Petitioners maintain, as they have throughout this litigation, that they will refuse to create any wedding website for a same-sex couple. Even an announcement of the time and place of a wedding (similar to the majority's example from FAIR) abridges petitioners' freedom of speech, they claim, because "the announcement of the wedding itself is a concept that [Smith] believes to be false." Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. That is status-based discrimination, plain and simple….
[D.] The majority, however, analogizes this case to Hurley and Dale. The law schools in FAIR likewise relied on Hurley and Dale to argue that the Solomon Amendment violated their free-speech rights. FAIR confirmed, however, that a neutral regulation of conduct imposes an incidental burden on speech when the regulation grants a right of equal access that requires the regulated party to provide speech only if, and to the extent, it provides such speech for others.
Hurley and Dale, by contrast, involved "peculiar" applications of public accommodations laws, not to "the act of discriminating … in the provision of publicly available goods" by "clearly commercial entities," but rather to private, nonprofit expressive associations in ways that directly burdened speech. The Court in Hurley and Dale stressed that the speech burdens in those cases were not incidental to prohibitions on status-based discrimination because the associations did not assert that "mere acceptance of a member from a particular group would impair [the association's] message."
Here, the opposite is true. 303 Creative LLC is a "clearly commercial entit[y]." The company comes under the regulation of CADA only if it sells services to the public, and only if it denies the equal enjoyment of such services because of sexual orientation. The State confirms that the company is free to include or not to include any message in whatever services it chooses to offer. And the company confirms that it plans to engage in status-based discrimination. Therefore, any burden on the company's expression is incidental to the State's content-neutral regulation of commercial conduct….
A content-neutral equal-access policy is "a far cry" from a mandate to "endorse" a pledge chosen by the Government. FAIR. This Court has said "it trivializes the freedom protected in Barnette" to equate the two. Requiring Smith's company to abide by a law against invidious discrimination in commercial sales to the public does not conscript her into espousing the government's message. It does not "invad[e]" her "sphere of intellect" or violate her constitutional "right to differ." All it does is require her to stick to her bargain: "The owner who hangs a shingle and offers her services to the public cannot retreat from the promise of open service; to do so is to offer the public marked money. It is to convey the promise of a free and open society and then take the prize away from the despised few." …
[E.] Although the consequences of today's decision might be most pressing for the LGBT community, the decision's logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example…. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for "traditional" families. And so on.
{The potential implications of the Court's logic are deeply troubling. Would Runyon v. McCrary have come out differently if the schools had argued that accepting Black children would have required them to create original speech, like lessons, report cards, or diplomas, that they deeply objected to? What if the law firm in Hishon v. King & Spalding had argued that promoting a woman to the partnership would have required it to alter its speech, like letterhead or court filings, in ways that it would rather not? Once you look closely, "compelled speech" (in the majority's facile understanding of that concept) is everywhere.}
Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human's life. They are the moments that give that life personal and cultural meaning…. [H]ear the story of Cynthia and Sherry, a lesbian couple of 13 years until Cynthia died from cancer at age 35. When Cynthia was diagnosed, she drew up a will, which authorized Sherry to make burial arrangements. Cynthia had asked Sherry to include an inscription on her headstone, listing the relationships that were important to her, for example, "daughter, granddaughter, sister, and aunt." After Cynthia died, the cemetery was willing to include those words, but not the words that described Cynthia's relationship to Sherry: "'beloved life partner.'" N. Knauer, Gay and Lesbian Elders 102 (2011)….
[F.] The unattractive lesson of the majority opinion is this: What's mine is mine, and what's yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the "promise of freedom" is an empty one if the Government is "powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother]." …
