Supreme Court Defends Freedom of Speech

Along with its more remarked-upon cases on affirmative action and student loan forgiveness, the Supreme Court decided this morning the case of 303 Creative LLC v. Elenis. 303 Creative is an important First Amendment case, following in the footsteps of Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. and other precedents. The case arose out of a declaratory judgment action by a web site designer who creates web sites for married couples, but does not want to do so for gay marriages.

In my view, the State of Colorado lost the case when it stipulated to the relevant facts. Under the Court’s precedents, the result should have been clear:

Ms. Smith and the State stipulated to a number of facts: Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender” and “will gladly create custom graphics and websites” for clients of any sexual orientation; she will not produce content that “contradicts biblical truth” regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are “expressive” and her “original, customized” creations “contribut[e] to the over-all message” her business conveys “through the websites” it creates; the wedding websites she plans to create “will be expressive in nature,” will be “customized and tailored” through close collaboration with individual couples, and will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage; viewers of Ms. Smith’s websites “will know that the websites are her original art-work;” and “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.”

Anyone familiar with the Court’s First Amendment jurisprudence should have foreseen that Smith would win. The state cannot demand that Americans parrot speech with which they do not agree. Full stop.

The 6-3 majority opinion was written by Justice Gorsuch. It is excellent. You can read all of the opinions here. The majority opinion includes many highlights. Here, Gorsuch points out that Colorado’s purpose is to stamp out ideas with which its current politicians do not agree:

Ms. Smith seeks to engage in protected First Amendment speech; Colorado seeks to compel speech she does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to compel her to create custom websites celebrating other marriages she does not. 6 F. 4th 1160, 1178. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 633, 642. Indeed, the Tenth Circuit 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. 6 F. 4th, at 1178. But while the Tenth Circuit thought that Colorado could compel speech from Ms. Smith consistent with the Constitution, this Court’s First Amendment precedents teach otherwise.

Colorado characterized Ms. Smith’s web design business as a “public accommodation,” like a restaurant or bus line. I would say it is no such thing, as the parties’ stipulation of facts indicates. But Gorsuch didn’t take that approach, presumably for good reasons. He writes:

To be sure, public accommodations laws play a vital role in realizing the civil rights of all Americans, and governments in this country have a “compelling interest” in eliminating dis- crimination in places of public accommodation. …
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Often, these enterprises exercised something like monopoly power or hosted or transported others or their belongings.
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“And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” Ibid. At the same time, this Court has also long 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. See, e.g., Hurley, 515 U. S., at 571, 578; Dale, 530 U. S., at 659. As in those cases, when Colorado’s public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const. Art. VI, §2.

That is the Supremacy Clause.

Justice Gorsuch devotes the final seven pages of his opinion to dissecting the dissent by Justice Sonia Sotomayor. If genteel, it is also rather brutal. Sotomayor’s dissent is a partisan cri de cœur on behalf of the LGBTQ community, where B stands for “bully.” Gorsuch writes:

It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, post, at 7–13, and the strides gay Americans have made towards securing equal justice under law, post, at 14–17. And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?

When the dissent finally gets around to that question—more than halfway into its opinion—it reimagines the facts of this case from top to bottom.

That is a common ploy by losing litigants and dissenting justices–pretend that the facts are something different from what is before the Court. In the 303 Creative case, that effort by Sotomayor is especially pathetic, since the facts were stipulated to by the parties.

Sotomayor’s dissent, not a judicial opinion but a partisan political rant, would be embarrassing if authored by a second-year law student. That such tripe can emanate from a Supreme Court justice is dispiriting. Shame on Elena Kagan, who should know better, and Ketanji Jackson for signing on with it.

But the bottom line is, we have a Supreme Court majority that is actually in favor of the First Amendment. Which would not be the case if we had two more Democratic Party appointees on the Court.