New Article on Eugene Volokh's Amicus Briefs Regarding Compelled Speech and Antidiscrimination Law

Volokh's view gave breathing room for individuals' speech interests while leaving plenty of space for government to protect people from discrimination

I've just published an article in Constitutional Commentary entitled "The Volokh Briefs: Drawing the Line Against Compelled Speech in Public Accommodations," 39 Const. Comm. 143 (2024) (available on SSRN here).  Here's the abstract:

In a series of important amicus briefs (the "Volokh Briefs") filed over the course of about a decade, Professor Eugene Volokh was the principal architect of an argument for protecting expressive goods and services offered for sale in the commercial marketplace.  This free speech protection would override certain applications of state antidiscrimination law.

The argument bore fruit in 303 Creative v. Elenis (2023), which held that under the First Amendment's Free Speech Clause the state could not force a designer to fashion websites incorporating the designer's customized text and graphics for the celebration of same-sex weddings. As Volokh and others urged, the Court's holding applied even though the business was classified as a "public accommodation" under Colorado's anti-discrimination law, which protects customers from discrimination based on certain characteristics like race, sex, and sexual orientation. The state had argued that refusing to create websites for same-sex weddings, while offering to create them for opposite-sex weddings, would be an act of discrimination based on sexual orientation. But as Volokh had argued, the Court held that the website designer would instead be refusing only to produce certain speech (not discriminating based on a customer's status), and her right against compelled speech must prevail under the First Amendment.

Consistent with Volokh's view, the speech protection in 303 Creative was limited to goods and services that were customized and expressive. Just as Volokh had urged, the Court reassured skeptics that its holding would have no application to the innumerable non-expressive goods and services in the marketplace. Much of Volokh's reasoning echoed in Justice Gorsuch's majority opinion.

This Article outlines the legal position developed in the Volokh Briefs. It focuses on the briefs in three key cases: Elane Photography (2013), Masterpiece Cakeshop (2018), and 303 Creative (2023) itself.  As part of tracing this intellectual journey, the Article shows how the Volokh Briefs evolved and matured over time and how they were distinct from others taking the side of the objecting service providers. Volokh's view of compelled speech gave breathing room for individuals' vital speech interests while leaving plenty of space for government to protect people from discrimination. The Article shows how the methodology in the Volokh Briefs provides a roadmap for drawing and navigating the lines necessary to preserve the core interests on both sides, although the Supreme Court stopped short of fully adopting it. Finally, critics of the Volokh Briefs abound among progressive civil rights organizations and academics. The Article responds to some of them.

As noted in the Article introduction, I was among the professors and lawyers who had the privilege of working with Eugene on the briefs, although they were mostly his brainchild.  He and his UCLA First Amendment clinic took the laboring oar on them.

The occasion for the Article was Eugene's decision to leave UCLA and join the Hoover Institution last year.  In April 2024, I joined several scholars in a roundtable discussion and celebration of his contributions to scholarship and law.

I also noted in the introduction that I'm not a dispassionate observer of Eugene's work:

I consider him both a friend and an intellectual role model. He is as good-natured and big-hearted, and yet as principled and rigorous, as any scholar I've known.

Eugene Volokh's premature and publicly underexplained decision to leave academia was a loss for viewpoint diversity in American law schools. It is partly in the service of such diversity that he has devoted an extraordinary body of work, including the small slice of it that I discuss here.

I'd like to thank my research assistant Caroline Hoch (SMU Law '25) for her estimable help in producing the Article.