The latest free-speech outrage is that former President Donald Trump has been barred by Judge Tanya Chutkan from defending himself against certain aspects of the charge that he attempted to overturn the 2020 election, which comes on the heels of revelations that the Biden administration attempted to squelch free speech on Facebook accounts during the 2020 election.
In the midst of these setbacks, however, we must not forget the win handed down in June by the Supreme Court. The effects of 303 Creative v. Elenis continue to reverberate in the public square.
In its 6–3 decision, the court decided that a Colorado web designer could not be compelled by the state to write words on websites generated for her customers that violated her Christian beliefs about same-sex marriage. In order to create individualized, custom websites for traditional marriages, which she wanted to do, she did not have to also create them for same-sex marriages, which she did not want to do.
303 Creative was a clear case of free speech. Words written on a website are as much speech as words emerging from a mouth. The First Amendment specifies that such words are protected; indeed, both parties in the 303 Creative case stipulated that what Lorie Smith, the web designer, was producing was speech. Nobody was arguing that it was not.
However, if you listen to the Left, the decision throws the country back to Woolworth lunch counters in 1960 North Carolina. It returns America to a Jim Crow Alabama, where restaurants refused to seat black people.
Just substitute gays for blacks.
In her dissent, Justice Sonia Sotomayor, joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson, wrote, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” (READ MORE: The Twitter Exile)
She threw the issue back to the bigotry of times past, unmindful of the particulars of the 303 Creative case and overlooking the legal validity of the sensitive religious conscience:
When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.
Smith will design websites for all comers; she is refusing service to no one. But when asked to personalize a website for a gay couple wishing to marry — to customize it with her own words and sentiments — she will not do so, for such weddings violate her religious beliefs.
Both sides in the case agreed on these stipulations. The defendants agreed beforehand that Smith would produce websites for LGBTQ+ people so long as they didn’t involve weddings. They agreed as well, as mentioned, that what Smith was producing on these websites was speech. The case was a clear issue of compelled speech, which the Constitution does not allow. Compelling speech with which one disagrees is the same as denying or censoring one’s speech. Sotomayor, in her dissent, went along with that doctrine.
So, what’s the gripe? Why the Sotomayoran meltdown?
Justice Neil Gorsuch seemed to wonder about that, too. In his majority ruling, he wrote, “It is difficult to read the dissent and conclude we are looking at the same case.” He accused the dissenters of reimagining the facts of the case “from top to bottom.”
After pages rehearsing the evolution of accommodation laws — irrelevant to 303 Creative — Sotomayor claims that Colorado wishes to regulate Smith’s “conduct,” not her speech, even though the state already stipulated that Smith’s activities are “expressive.” Early in her dissent, Sotomayor makes it clear: “As I will explain, the law in question targets conduct, not speech, for regulation.” Any burdens on speech in this case are, according to the dissent, “incidental.”
As for her claim that “for the first time in its history,” the court “grants a business open to the public” a “right to refuse to serve members of a protected class,” Gorsuch counters, “Never mind that we do no such thing,” and adds, “[I]t is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own.”
Toward the end of her dissent, Sotomayor says the quiet part out loud. Opines Gorsuch:
Finally, the dissent comes out and says what it really means: Once Ms. Smith offers some speech, Colorado “would require [her] to create and sell speech, notwithstanding [her] sincere objection to doing so”—and the dissent would force her to comply with that demand.
In a world like that, Gorsuch continues, quoting Chief Judge Timothy Tymkovich from the 10th Circuit appellate court decision, governments could force “an unwilling Muslim movie director to make a film with a Zionist message,” and they could compel “an atheist muralist to accept a commission celebrating Evangelical zeal.” Gorsuch adds his own kicker:
[A]nd they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages.
One legal pundit lamented Gorsuch’s unwillingness to narrowly define speech. The justice did not build a fence around “expressive services.” “My gripe with the case is that the ruling lacks any limits or contours,” writes Burt Likko, at Ordinary Times. “The majority opinion does not take seriously the dissent’s notion that there ought be some sort of brake on the scope of the exception to enforcement to laws generally that the opinion writes into the law.”
One suspects that the Left is willing to admit that creating websites is an expressive service, but fashioning custom wedding cakes is not, taking wedding photos for a gay wedding is not, and arranging flowers in a creative way for same-sex nuptials is not.
Here’s Gorsuch defending the scope of his ruling:
Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment… But those cases are not this case. 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”… Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow.
While 303 Creative offered a clear determination for speech, other wedding-vendor cases, as Gorsuch intimated, are more opaque. The court has, in recent years, come down on the side of those claiming their speech rights have been abridged, or denied, in similar cases, most particularly the Masterpiece Cakeshop case, in which fashioning a custom cake for a gay wedding was determined sufficiently “expressive” to command exemption from anti-discrimination laws. (READ MORE: 303 Creative Protects a Little Kosher Bakery From LGBTQ Tyrants)
But it ruled narrowly in that case, without passing a general application. Legal scholars have been quick to offer distinctions as to which trades are expressive and which not, and which wedding vendors would be exempt from anti-discrimination laws and which not, but so far the court has not handed down a broader interpretation of what constitutes expressive “speech” but instead has confined its rulings in such free-speech cases to the narrowest basis possible.
What seems clear, however, is that a blanket application of anti-discrimination laws, as desired by some on the left, is not forthcoming from this court. According to this line of thought, one who enters the public marketplace effectively forfeits his First Amendment rights, whether to speech or religious liberty. If you have a religious or speech problem about offering a service or product, you can either swallow your conscience and sell the item, or quit your trade.
Thankfully, the 303 Creative case invalidates that approach to “free” speech.
