Earlier this term, the U.S. Supreme Court granted review in a free speech case, 303 Creative, et al. v. Elenis, which resembles Masterpiece Cakeshop v. Colorado Civil Rights Commission but with speech rather than religion highlighted. The question presented is whether a Colorado law (the same one challenged in Masterpiece Cakeshop) that prohibits sexual-orientation discrimination and sex discrimination by public accommodations violates the Free Speech Clause of the First Amendment if applied to a web designer who wishes to create wedding websites for opposite-sex couples but not for same-sex couples. The web designer in question has been holding off on creating wedding websites out of a fear that she might get into trouble if she discriminates against same-sex couples, as she intends both to do and to advertise doing.
The Supreme Court Will Probably Get It Wrong
The Supreme Court will very likely hold that the web designer has a First Amendment free speech right both to discriminate against same-sex weddings in creating websites and to advertise to the public her intention to so discriminate. The Court will probably say that the Constitution generally permits the government to enforce laws prohibiting discrimination against activities that discriminate. If I have a business selling my fantastic vegan doughnuts and apple fritters, for example, the law can require me to sell them to people over the age of 70 even if I would prefer to sell them only to customers under that age. Likewise, the law can stop me from putting up a sign on my doughnut shop that says, “People under 70 welcome with i.d. proving their age.” I expect the Court to say, however, that web design involves speech in a fundamental way, beyond just having to talk with one’s customers in a manner that shows equal respect to different groups. The Court will, I believe, hold that enforcement of Colorado’s anti-discrimination law against the web designer violates the First Amendment.
In its primary line of cases about free speech, the Court has distinguished between direct or targeted burdens on a person’s communication, on the one hand, and incidental burdens on that communication, on the other. In Simon & Schuster Inc. v. Members of N.Y. State Crime Victims Bd, for instance, the Supreme Court held that New York State may not require that royalties from a book that exploits the author’s criminal conduct go to a fund for victims of that conduct. The reason was that the law singled out speech—in the form of writing about the crime—for special burdens that would spare perpetrators who benefited in some other way from their crimes. The problem, in other words, was not the fact that the law would burden speech; it was the fact that the law singled out speech for a burden.
One can imagine many scenarios in which the government acts in a manner that happens to burden speech along with other activities. Say you are headed over to the annual Federalist Society conference. You plan to give a keynote address about how laws prohibiting abortion are an exercise in eminent domain wherein the zygote or embryo or fetus enjoys an easement on uterine property that might best be secured by paying “just compensation,” a fee that should be waived to avoid the appearance of treating the zygote as property. As you look at your slides in the back of an Uber headed to the airport, however, a police officer pulls your driver over for speeding. Your driver tells the officer that he wasn’t speeding, but the officer believes otherwise. By the time the traffic stop comes to an end, you and your driver run into traffic, and you miss your flight. You call your contact at the Fed. Soc., and he tells you they only run live presentations, so you cannot give your speech remotely from your iPad. In this situation, the government has acted in a manner that resulted in silencing your speech. Yet no one—even on this Supreme Court—would claim that the police officer who pulled over your Uber driver violated the First Amendment Free Speech Clause.
In some sense, then, many of the Court’s cases endow people with the right not to have the government intentionally censor their speech. Instead of a right to speak per se, there is a right against government censorship. The Court talks about the right against content and viewpoint discrimination to recognize that the government may not decide what topics are permissible or what positions on any topic are allowed. The government does not prescribe an orthodoxy of any kind, however, by requiring places of public accommodation to serve customers without discriminating on the basis of impermissible categories. Singling out illicit motives for a prohibition is an old and well-respected governmental function. It underwrites such legislation as hate crime enhancements, upheld in Wisconsin v. Mitchell, though many amicus briefs complained unsuccessfully that it violated the First Amendment freedom of speech. When a law that does not target speech has an incidental effect on speech, there is therefore generally no reason to treat that incidental effect as a First Amendment problem.
Unfortunately, however, when gay rights are in play, the Supreme Court has been quite protective of the “free speech” rights of homophobes to have an exemption from a generally applicable law against discrimination. In Boy Scouts of America v. Dale, the Court said that the Boy Scouts had an expressive association right under the First Amendment to refuse to employ a gay assistant scoutmaster, even though the refusal violated an anti-discrimination law that did not target speech or association. In an earlier case, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court had held that requiring private citizens who organize a parade to include among the marchers a group with a message that the organizers reject violates the First Amendment right of free expression. In Hurley, as in Dale, the government had been attempting to enforce an anti-discrimination law that was general in nature and did not single out expressive association or speech. To be sure, the Court has occasionally protected non-homophobic speech incidentally affected by government action. However, there does seem to be a disturbing pattern here of almost exclusively granting homophobes special First Amendment exemptions from anti-discrimination law, a pattern that I predict the Court will follow in 303 Creative.
If we were naïve, we might expect the following to happen in the wake of the Court’s expected decision in 303 Creative: web designers would have the right to turn away Catholics if the designers believed that Catholics engage in idol worship and are polytheists; businesses that help students write better college admission essays would be entitled to exclude all Christians because the businesses believe that too many Christians take spaces in college from other religious groups; a white supremacist meditation school could refuse to serve African Americans who want to learn to meditate; and public defenders would have the right to turn away a credibly accused rapist because representation requires speech that suggests belief in the innocence of the client. But note that none of these examples involves a speaker who wants to refuse to do business with same-sex couples or wants to announce the intention to refuse service to same-sex couples. For that reason, we might not have a slippery slope here after all. All we might have is (additional) evidence of the Court’s parochialism and hypocrisy.