The slippery slope of state-compelled speech
LORIE Smith is a conservative Christian and a website designer who thinks she should be able to engage in her chosen occupation without compromising her moral beliefs. But that is illegal in Colorado, where Smith is forbidden to create websites for heterosexual weddings unless she is also willing to create websites for gay weddings.
The Colorado Anti-discrimination Act simultaneously censors Smith by stopping her from announcing the principles that guide her work and requires her to express a message that contradicts those principles. The question for the Supreme Court, which heard Smith’s case last week, is whether those commands are consistent with her First Amendment rights.
Colorado and Smith agree that she is happy to serve any customer, regardless of sexual orientation, provided the work is consistent with biblical values as she understands them. Last year, the 10th U.S. Circuit Court of
Appeals agreed with Smith that her custom website designs “are pure speech.” It said Colorado’s rules therefore amount to compelled speech as well as viewpoint-based speech restrictions, making them subject to “strict scrutiny.”
The 10th Circuit nevertheless concluded that Colorado law’s application to Smith and her business, 303 Creative, passes constitutional muster because it is necessary to protect the “material interests” of “marginalized groups” in “accessing the commercial marketplace.” That conclusion is puzzling.
As Smith’s lawyers at the Alliance Defending Freedom note in their Supreme Court brief, “hundreds of other website-design companies operate in Denver alone.” So even if Colorado allowed Smith to specialize in opposite-sex weddings, gay couples would have plenty of alternatives.
But while same-sex couples would have lots of other options, the appeals court reasoned they would not have access to her unique work. In that respect, it said, Creative 303 is “similar to a monopoly.”
That “monopoly of one” theory, which dissenting Judge Timothy Tymkovich called “unprecedented,” “threatens every artist’s control over her own speech, replacing speaker autonomy with the government’s message,” Smith’s lawyers argue. By “declaring that a unique and customized product is irreplaceable and that therefore a requirement to provide it in the commercial marketplace is narrowly tailored,” First Amendment specialists Eugene Volokh and Dale Carpenter likewise warn in a Supreme Court brief, the 10th Circuit’s analysis effectively eliminates “free-speech protection for providers of expressive products.”
Under its law, Tymkovich suggested, Colorado could force “an unwilling Muslim movie director to make a film with a Zionist message” or require “an atheist muralist to accept a commission celebrating Evangelical zeal.” Because some state and local laws prohibit commercial discrimination based on political activities or ideology, such legally mandated speech could go even further. “Under Colorado’s theory,” Smith’s lawyer observed during oral arguments on Dec. 5, “jurisdictions could force a Democrat publicist to write a Republican’s press release.”
While such hypotheticals might seem fanciful, the underlying principle is the same. If the courts allow compelled speech in the name of protecting equal access to “places of public accommodation,” supporters of those laws won’t necessarily like the results.