February 5, 2023

The Supreme Court will hear the matter next week 303 Creative LLC v. Elenisa case that offers the court an opportunity to reconcile the growing tension between First Amendment guarantees of free speech and laws governing public housing.

Public housing laws have generally coexisted peacefully with the First Amendment. But in a disturbing new trend, governments across the country are claiming the power to force speech under the aegis of such laws. The essence of the question asked in 303 creative whether artists – in fact all Americans – are free to say only what they believe.

The plaintiff a 303 creative, Lorie Smith, is a website designer who combines the traditional elements of art with modern technology. Every word she writes, every graphic she designs and every custom website she creates is original and expresses a unique message. The parties all agree that Smith’s websites are Rede. Smith and Colorado further agree that she serves everyone and that she creates custom websites for people from all walks of life, including her LGBT customers.

These concessions decide this case. Using Colorado’s statute to amend Smith’s speech violates the First Amendment. States can and do protect their citizens from being denied access to essential goods and services who they are. No one is arguing – and the Alliance Defending Freedom would resist any argument – to allow behavior that an entire class of people opposes. But when government targets speech rather than behavior, First Amendment safeguards apply.

As the Supreme Court said unanimously Hurley v. Boston, Inc. Irish American gay, lesbian and bisexual group“While the law is free to encourage all manner of behavior in lieu of harmful behavior, it is not free to disrupt speech for no better reason than to spread an approved message or discourage a disapproved one, no matter how enlightened both purposes are to the government.” like to meet.”

Under the doctrine of coerced speech, the government may not compel individuals to affirm certain beliefs more than it can require them to convey the government’s own message. When speech is forced, individuals are forced to betray their own beliefs. Per Justice Robert Jackson’s oft-cited opinion in West Virginia vs. Barnette: “If there is a fixed star in our constitutional constellation, it is that no official, high or low, can dictate what should be orthodox in politics, nationalism, religion, or any other question of opinion, or compel citizens by word or deed to profess can their belief in it.”

Still in 303 creative, Colorado claims the authority to compel Smith to orally profess her beliefs in Colorado’s prescribed orthodoxy instead of her own. Colorado is asking Smith to create custom same-sex wedding websites — speech — even though it goes against her deeply held beliefs. Regardless of your views on marriage (or any other topic), 303 creative raises profoundly important questions about whether the government can force people to speak and spread messages they disagree with.

The ability to choose one’s words is central to self-autonomy and self-management. Silencing certain unpopular points of view would impoverish the American conversation and impede the search for truth envisioned by the First Amendment. In fact, the drafters of our Constitution believed in the power of “free and fearless reasoning.” Under the free speech clause is the answer to false speech more speech, no less.

In a notable decision, the 10th Circuit acknowledged that Colorado’s public accommodation law compels Smith to speak out against her righteous beliefs. Based on a novel theory, the court found that Colorado could force her to speak because she is the sole source for the wedding websites she designed. The more unique an artist’s speech, the greater the government’s interest in enforcing it. The lower court’s ruling is so unprecedented that Colorado doesn’t even defend its argument.

Still, Colorado’s arguments don’t fare any better. Colorado claims that any incrimination of Smith’s speech is permissible because its public lodgings law governs the sale. This argument relegates business owners who create speeches to second-class First Amendment status. It would require a Democratic speechwriter to craft speeches that promote the Republican platform, a mom with an Etsy side business who creates religious art to create art that supports atheism, and an abortion photographer to create pro-life to encourage rallies. Simply put, the government should not deny Americans who create art for a living the right to free speech.

in the Hurley, the Supreme Court ruled that Massachusetts could not use its Public Lodgings Act to change the message of the Boston parade. The court found that such use of state power “would violate the basic rule of First Amendment protection that a speaker has autonomy to choose the content of his own message.” The same principle protects Smith.

Smith’s request is modest. A win for them would be Not take us back to ugly times in our nation’s history, as Colorado and free speech opponents disingenuously suggest. Thousands of business transactions take place every day and involve no expression at all – they would be fully covered by state lodging laws. Furthermore, the coerced speech doctrine does not protect the rare business owner who refuses to sell a ready-made product (in this case the government does not influence the speech since the creation has already taken place) or the rare artist who refuses to sell a pre-made product to create work based on who a person is.

In fact, 20 states already have public housing laws that protect speech, showing that these laws and the First Amendment can peacefully coexist. A victory for Smith would be a victory for all Americans to ensure that none of us becomes the mouthpiece of the government.

It is no exaggeration to call coerced speaking out for positions favored by the government – ​​as Judge Tymkovich did – “an existential threat to our most sacred liberties”. Regardless of one’s views on marriage, we should be extremely disturbed by Colorado’s argument that the government could force individuals to speak against their deepest beliefs.


Erin Hawley is senior counsel at Alliance Defending Freedom, former law professor and former clerk to Chief Justice John G. Roberts Jr.

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