Can SCOTUS Prevent Free Speech from Swallowing Anti-discrimination Law?


On Monday, the Supreme Court heard oral argument in 303 Creative LLC v. Elenis. As the case comes to the high Court, it presents a clash between a Colorado law forbidding places of public accommodation from discriminating based on sexual orientation and a conservative Christian web designer’s objection to creating material that, she says, tacitly expresses approval of same-sex marriage. Although the original complaint raised issues of both religious freedom and free speech, the Court took the case to decide the free speech question alone.

As I warned in a 2017 column on this site in response to an oral argument in another case involving objections to Colorado’s public accommodation law, this sort of challenge poses a potentially existential threat to anti-discrimination law. Thus, unsurprisingly, Monday’s oral argument featured various hypothetical examples aimed at testing the limits of the principles espoused both for and against recognizing a constitutional right to a free speech exception to Colorado’s law. In this column, I’ll explore the main options available to the Court.

Does the Case Even Implicate Free Speech?

There is one very easy way for the Justices to resolve 303 Creative. They could say that free speech is not implicated at all. Writing in The New York Times, David Cole, the national legal director of the ACLU, argued forcefully that people who make a living by creating expression—whether photographers, journalists, or web designers—retain the right against forced speech so long as they offer their services privately, but when they hold themselves out to the general public and thus take advantage of the marketplace, they can be required to serve the public without exception.

Cole’s argument echoes points made in the briefs supporting Colorado that invoke the long history of public accommodations laws. The common law placed a duty on innkeepers, restaurant owners, and other businesses that were open to the public to be open to all members of the public. Although nineteenth century laws obviously did not specifically forbid sexual orientation discrimination, the broad obligation they placed on business owners undercuts any notion that the original meaning of either the First Amendment or the Fourteenth Amendment— which makes free speech protections applicable against state laws—entitles business owners open to the general public to a free speech exemption. Thus, except for a short exchange between Justice Clarence Thomas and Colorado Solicitor General Eric Olson, the argument paid no attention to original meaning.

One might therefore think that a hyper-conservative Court that has, in recent cases involving abortion, gun control, and church-state separation, made history the sine qua non of constitutional rights, would also reject 303 Creative owner Lorie Smith’s free speech claim. However, this Court apparently cares about history only when it supports the outcome the conservative super-majority favors. Thus, it is unlikely that the Court will rule against 303 Creative based on the pedigree of public accommodations laws.

Yet Cole’s argument is based on more than history. It also encompasses a logical claim that by opening a business to the public, a business owner impliedly waives any free speech objection to the business that may come one’s way. There is much to be said for this notion of waiver.

Suppose Joe is bigoted against Japanese Americans (perhaps because 81 years ago today his great-grandfather was killed at Pearl Harbor and he has inherited a view that holds all people of Japanese ancestry guilty by association). Joe can act on his bigotry by not inviting Japanese Americans into his home. He can decide not to date or socialize with Japanese Americans. If he is a poet, he can write hate-filled poetry decrying Japan and Japanese Americans. He can limit his poetry-for-hire service to people who do not trace their ancestry to Japan. But if Joe opens a poetry-for-hire business that serves most anyone who pays his fee, he cannot exclude customers based on their Japanese ancestry. That principle lies at the core of federal and state public accommodations laws.

Beyond history and logic, there is a further reason to deem the opening of a business to the public a waiver of any right to deny service based on disagreement with a message the business owner might have to express by serving a client: economic fairness.

Most people who work for a living do not own their own businesses. If Lorie Smith could not afford to open her own web design company, she would have to take a job working for someone else. If the owner of that business had no objection to designing websites promoting same-sex weddings, Ms. Smith could be told that she had to design them or lose her job. There would be no plausible constitutional claim of free speech because the directive would be coming from her boss rather than the government. Likewise, to avoid turning free speech into a privilege based on wealth, one might think that by entering the market as owners, people like Smith agree to be bound by the same principles that apply to everyone not fortunate enough to own their own business.

In Search of a Limiting Principle

Despite the appeal of the argument by Cole and the ACLU, it is apparent that a majority of the Supreme Court believe that at least some business owners have a free speech right to object to the application of public accommodations law. At the same time, however, even the current Court seems unprepared to give everybody who asserts a free speech claim an exemption from public accommodations law. The question for this Court is how to give such an exemption to Smith and some others without fatally undercutting anti-discrimination law.

Most of the Justices were receptive to the notion that only a handful of the sorts of business owners who might be asked to provide goods or services for a wedding are engaged in expression of any sort. In this view, web designers and photographers but not limousine drivers or caterers would be entitled to object that their facilitation of a same-sex wedding expresses a view they do not hold—that same-sex marriage is morally appropriate.

That limiting principle is better than none, but it raises a host of further questions. What about florists and (as in the prequel to 303 Creative) bakers? Is it speech in favor of same-sex marriage to create a cake with two grooms or two brides on top of it? Does it make a difference if the cake itself embeds a picture of the same-sex couple rather than containing two figurines placed atop the cake?

From the other direction, as questions by Justices Sonia Sotomayor and Elena Kagan explored, does a wedding website that announces the wedding date, venue, and registry, and tells the story of how the couple met, speak in any realistic way on behalf of the web designer as opposed to the couple? And even if the speech can be partly attributed to the web designer, where is the endorsement of same-sex marriage?

Might it make a difference, as Justice Kagan suggested, if the couple asks the web designer to include a message like “God blesses this Union”? If providers of expressive services cannot be required to speak messages with which they disagree, should off-the-rack or do-it-yourself websites be treated differently from bespoke ones that require specific input from the web designer? If so, how much customization must there be to shift from one category to another?

None of those questions has an easy answer, suggesting that if 303 Creative wins, the lower courts and ultimately the Supreme Court itself will have years of further cases probing the boundaries of this sort of claim.

Distinguishing Ideology-Based Public Accommodations Laws

The oral argument also touched on some very odd hypothetical examples. For example, Justice Samuel Alito asked Mr. Olson whether a Black Santa posing for Christmas photos in a mall should have to sit for a picture with “a child who’s dressed up in a Ku Klux Klan outfit.” Mr. Olson answered that the Santa would not be required to sit for the photo because “Ku Klux Klan outfits are not protected characteristics under public accommodations laws.”

That answer works for the case at hand. Colorado’s law does not forbid businesses that are public accommodations from discriminating based on the politics or ideology of prospective customers. However, a number of jurisdictions in the United States do forbid that kind of discrimination. UCLA Law Professor Eugene Volokh warned in an article last year that if “a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations,” then a “photographer would then have no First Amendment right to refuse to photograph a Nazi . . . event in a jurisdiction with a ban on political discrimination by public accommodations.”

Is that right? In such a jurisdiction, would the Black Santa have to take the photo with a child in KKK garb?

The answer should be no. Professor Volokh’s reasoning assumes that if a photographer (or web designer) has a free speech right, the photographer (or web designer) necessarily wins the case. But there is a second stage to free speech analysis. Government is permitted to infringe free speech rights if its law survives so-called struct scrutiny—i.e., if it is narrowly tailored to promote a compelling interest.

To be sure, an amicus brief Professor Volokh and others filed in 303 Creative argues that the lower court erred by finding that Colorado’s law was narrowly tailored to addressing sexual orientation discrimination in the particular case, but that argument might fail, and even if it succeeds in 303 Creative, in other cases there could be a sound basis for distinguishing traditional public accommodations laws from the laws that in some places forbid service denials based on political expression: government has a compelling interest in combating invidious discrimination; it has a less substantial interest in combating political discrimination by sellers of goods and services. Indeed, the relative rarity of laws forbidding political discrimination by public accommodations reflects the fact that such discrimination is not nearly as substantial a problem as discrimination based on race, national origin, religion, sex, age, disability, sexual orientation, gender identity, and a handful of other personal characteristics that public accommodations laws typically list.

An Ill-Advised Path

Mr. Olson offered the Court one other path by which the state could win the case. To prove that Colorado does not forbid speech by the likes of Ms. Smith, he said that she could, if she so chose, put on her website a statement that only marriages between a man and a woman are genuine marriages or marriages blessed by God. She could even put such a message as a kind of signature on the wedding websites themselves—so long as they appeared on websites for opposite-sex as well as same-sex weddings. Then, Mr. Olson, said, there would be no different treatment of same-sex couples from opposite-sex couples. When pressed about this suggestion, United States Deputy Solicitor General Brian Fletcher said he agreed.

Justice Alito expressed justified skepticism about that answer, because it would effectively allow the circumvention of Colorado’s anti-discrimination policy. Suppose an employer covered by Title VII posts an advertisement for a position that includes the statement “No Irish need apply.” That would clearly violate the statute’s prohibition on national origin discrimination. Likewise, a sign displayed on the entrance to a restaurant stating “Black patrons will be served only at the back takeout window” would clearly violate Title II, the federal public accommodations statute, which forbids racial segregation. Both of those conclusions would hold even if the employer really would be willing to hire Irish applicants and the restaurant really would be willing to seat Black customers who came through the front door. Why? Because the statements have the obvious (and almost always intended) effect of discouraging people from even attempting to enjoy the equal rights that anti-discrimination laws protect.

Yet that is also true of a sign that says “this business does not hire persons of Irish descent” because of some stereotype or “the owners of this restaurant believe that racial mixing is immoral.” True, some hearty souls might be undeterred by the signs, but overall the signs will dramatically undercut anti-discrimination law. And the same is true of any language on 303 Creative’s own website and especially on particular wedding websites stating that the owner of 303 Creative believes the only real marriages or the only ones God blesses are between a man and a woman.

Accordingly, Messrs. Olson and Fletcher would have done better to bite the bullet and acknowledge that the Colorado law does infringe the speech of 303 Creative but nonetheless defended that infringement as incidental to the enforcement of anti-discrimination law—just as a prohibition of posting a “No Irish need apply” sign infringes some speech of employers but does so justifiably.

In the end, of course, the concession likely won’t matter for the outcome of 303 Creative. The conservative super-majority will almost surely rule against Colorado. The only hope is that it does so in a way that merely wounds but doesn’t kill anti-discrimination law.

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